Professional briefing

Transcription

Vol 56 No1 JANUARY 2011
www.journalonline.co.uk
THE MEMBER MAGAZINE FOR THE LAW SOCIETY OF SCOTLAND
Cyber
contest
Wikileaks, secrets
and the law
Payback
principle
New community
orders arrive
Better
good
LawWorks
Scotland
launches
In
our
grasp
Taxing questions await Holyrood
under the new Scotland Bill
ALSO INSIDE: CABX / DIVERSITY / CHILD ABDUCTION / SPONSORSHIP / BURDENS
See the magazine online: www.journalonline.co.uk Online recruitment: www.lawscotjobs.co.uk
Contents Vol 56 No 1 January 2011
Contact
Journal
staff and
contributors
PUBLISHERS
The Law Society of Scotland
26 Drumsheugh Gardens
Edinburgh EH3 7YR
t: 0131 226 7411
f: 0131 225 2934
e: [email protected]
w: www.lawscot.org.uk
President: Jamie Millar
Vice President: Cameron Ritchie
Chief Executive: Lorna Jack
18 Power of the web
Regular items
5 Editor
Brace yourselves for 2011
6 Update
Forthcoming CPD dates
7 President
Challenges of the new year
9 Opinion
John Kerrigan: End of Life Bill
10 Letters
Offers to sell; sheriffs; legal aid
15 Registers
31 Professional news: Society
(More in the box below)
35 Notifications
Entrants to the profession
36 Professional practice
36
37
38
40
“Hot tubbing” experts
Ask Ash
Sponsorship
Risk: prize crossword
42 Professional briefing
42
44
45
46
48
49
50
51
Civil court
Insolvency
Licensing
Children
Environment
Sport
Websites
Book reviews
53 Property lawyer
Enforcing real burdens
56 People
Firms and lawyers on the move
57 Current consultations
Topics that might be of interest
58 Sidelines
Manus Straw; Books extra
60 Classified
61 Recruitment
Total Net
Circulation: 11,477
(issue specific May 10)
Av. Net Circulation:
11,044 (Jul 09-Jun 10)
Subscription Information:
Practising Certificate (inclusive cost)..................£620
Non Practising Certificate
(UK and Overseas, inclusive cost)......................£220
Annual subscription UK ....................................£84
Overseas ........................................................£108
Trainees ............................................................Free
www.lawscotjobs.co.uk
46 Being relevant
38 Money well spent?
EDITORIAL OFFICE
Connect Communications
Studio 2001, Mile End, Paisley
PA1 1JS
t: 0141 560 3018
f: 0141 561 0400
e: journal@
connectcommunications.co.uk
w: www.journalonline.co.uk
Editor: Peter Nicholson
t: 0141 560 3018
e: peter@
Review editor: David J Dickson
Website news: Brian Henson
e: news@
Senior sub-editor:
Wendy Fenemore
Sub-editors: Gary Atkinson,
Jim Byers
Design & production:
Alan Morton, John Pender,
Debra Campbell, Paul McGinnity
Advertising sales:
t: 0131 561 0023
e: journalsales@
DISCLAIMERS
The views expressed in the Journal
of the Law Society of Scotland are
those of invited contributors and
not necessarily those of the Law
Society of Scotland. The Law
Society of Scotland does not
endorse any goods or services
advertised, nor any claims or
representations made in any
advertisement, in the Journal and
accepts no liability to any person for
loss or damage suffered as a
consequence of their responding to,
or placing reliance upon any claim
or representation made in, any
advertisement appearing in the
Journal. Readers should make
appropriate enquiries and satisfy
themselves before responding to
any such advertisement, or placing
reliance upon any such claim or
representation. By so responding,
or placing reliance, readers accept
that they do so at their own risk.
On no account may any part of this
publication be reproduced without
the written permission of the
copyholder and publisher,
application for which should be
made to the publisher. © The Law
Society of Scotland, 2011
ISSN: 0458-8711
12 Power to the Parliament
Features
12 A bill for bills
20 Sentences rewritten
The taxation powers in the new
Scotland Bill are far-reaching and
likely to have a major impact
Community payback orders come in
on 1 February: how do they work?
16 Rights and procedures
A young lawyer’s research into
diversity in Scotland and the USA
Child abduction law could be
turned on its head by recent
developments, especially in the
Strasbourg court
23 Mixing it up
26 Pro bono co-ordinated
Introducing LawWorks Scotland
ahead of its formal launch
18 Battle in cyber space
28 Still a deserving cause
The Wikileaks/US cables saga raises
some significant legal issues
Interview with CAB managers as they
too look for new sources of support
Society news>
Turn to pages 31-35 for Elaine Tyre
appreciation; AGM notice; next office
bearers; law reform; roadshows; new law
clinic. Website: www.lawscot.org.uk
January 2011 theJournal / 3
Editorial
All set for 2011? If we brace ourselves for a
bumpy ride, the reality might just be a little better
Back in the fray
Fitting deadlines round Christmas
and New Year means writing this
editorial ahead of a break which, by
the time you read the page, will
probably be a rapidly fading memory
as we grind our way through January.
I can only hope that the
temperature is a bit less sub-zero to
compensate, though even the cold
can weave some magic: the trees near
the office are astonishingly beautiful
at present, every little twig heavy
with frost and brilliant in the
December sunshine.
Applying the analogy, if we can
keep going when the going gets tough
and make the most of such benefits as
come our way, the new year may yet
have a positive feel, and provide a
sense of achievement by the end.
Having survived the professional
and economic ructions of 2010,
Scottish solicitors must at least feel
that they can take most things that
2011 is likely to throw at them. We are
certain not to be short of events.
The reality of public spending cuts
will begin to bite, probably for the
legal aid lawyers first, but what hope
is there for, say, the property market?
As I write, a pattern is developing of
lowest numbers of transactions and
mortgage approvals each month
compared with the last decade or so,
and the VAT rise is not going to make
things any better.
Then we shall have elections to
the Scottish Parliament, and what
will that mean for projects in
the pipeline? Will any new
administration share the enthusiasm
of the current one for the civil court
reforms proposed by Lord Gill? Will it
attempt to alter the course towards
ABS, even as the clock ticks down
towards their introduction in England
& Wales in October? And, of course, we
shall have a whole new budget round
to face, whether or not ministers seek
to fund any pet projects by raiding the
coffers of current spending.
Editor
Peter Nicholson
Having
survived the
professional
and economic
ructions of
2010, Scottish
solicitors must
at least feel
that they can
take most
things that the
coming year is
likely to throw
at them. We are
certain not to
be short of
events
Legally speaking we will have the
report of the Carloway review,
something over which the next
Scottish Government is likely to
want to prove its criminal justice
credentials. The Scottish Law
Commission has now tossed similar
fact evidence (the Moorov rule) and
admissibility of previous convictions
into what is already a potentially
heady brew as respects corroboration
and the right to silence.
Lawyers will also be able, if so
minded, to get their teeth into the
Scotland Bill. This month’s lead
feature is worth reading if only for
an understanding that the taxation
proposals really are potentially
quite radical, though reading the
comments of the UK Exchequer
Secretary I do wonder what taxes our
Parliament could introduce that meet
all the tests of EU compatibility,
arbitrage avoidance and the rest. And
again by the time this is published,
we may be clearer as to what, if
anything, is proposed by way of
amendment of the jurisdiction of the
UK Supreme Court in relation to
devolution appeals.
Related to that last point, its latest
decision, Principal Reporter v K (see
p46 of this issue) shows the court,
not for the first time, taking a more
searching approach to the
application of the European
Convention than the Inner House
appears to have done. It may be that
the fundamentals of a case emerge
more clearly as it goes higher up the
appellate chain.
Whether or not that is so, I suggest
that in its recent decisions the court
has shown a willingness to revisit
settled but arguably questionable
practices which we would not have
seen if the Scottish-based courts had
had the last word. This being Robert
Burns month, you might say that
Scots law is being required to see
itself as others see it, which is no
bad thing. I personally hope that
we will not see any fetters on the
court’s present powers.
If I began by looking ahead with
some trepidation, may I conclude by
hoping that the year ahead may at
least bring you some pleasant
surprises. Have a good one.
Read Peter Nicholson’s blog, and others
at www.journalonline.co.uk/blogs
Follow the Journal on Twitter at twitter.com/jlsed
CPD EVENTS
Please view website for further details
JANUARY
18
20
20
24
25
26
26
27
28
CPD For New Lawyers: Career Progression Workshop – Glasgow
CPD For New Lawyers: Career Progression Workshop – Edinburgh
Education and Training Roadshow – Aberdeen
CPD For New Lawyers: Career Progression Workshop – Dundee
ILG Seminar – Intellectual Property Update
CPD For New Lawyers: Everything you wanted to know about appearing
in court but were afraid to ask – Aberdeen
CPD For New Lawyers: Career Progression Workshop – Aberdeen
Education and Training Roadshow – Edinburgh
ILG Seminar – 21st Century Bar – Edinburgh
FEBRUARY
1
3
3
8
10
10
17
22
22
24
tbc
tbc
tbc
tbc
tbc
tbc
tbc
Anti-Money Laundering Roadshow – Dumfries
Education and Training Roadshow – Inverness
ILG Seminar – Licensing
CPD For New Lawyers: Networking – Glasgow
ILG Seminar – Mediation
Education and Training Roadshow – Dundee
Education and Training Roadshow – Glasgow
ILG Seminar – Personal Injury
Education and Training Roadshow – Dumfries
CPD For New Lawyers: Introduction to Sheriff Court Procedures – Dundee
Bribery Act
Contract Law
Education and Training Roadshow
Medical Negligence
Renewable Energy
Vulnerable Witness Conference
Client Relations Partners Roadshow – Dumfries, Inverness, Aberdeen
MARCH
3
8
10
15
15
16
17
22
23
29
tbc
tbc
tbc
tbc
tbc
CPD For New Lawyers: Career Progression Workshop – Edinburgh
ILG Seminar – State Aid
CPD For New Lawyers: Presentation Skills – Dundee
CPD For New Lawyers: Career Progression Workshop – Glasgow
ILG Seminar – Environmental Regulations
Contingency Planning: For Large and Small Firms
ILG Seminar – Corporate Governance
ILG Seminar – Procurement
Arbitration in Scotland: Why and How?
CPD For New Lawyers: Introduction to Advocacy Skills – Inverness
Corporate Homicide – The Effect of the Corporate Manslaughter and
Corporate Homicide Act 2007
Advocacy Skills
Damages
Dealing with the Media
How to Become an Accredited Specialist
Please visit our website for seminars details and future dates for CPD For
New Lawyers. This series has been specifically designed for law students,
trainee solicitors and solicitors with up to five years’ PQE. Diploma
students on the Student Extra scheme can attend these free of charge.
Most courses will incur a small charge for all other individuals.
tbc
tbc
tbc
Insolvency Roadshow
Writing Skills for Professionals
Cadder Roadshow
APRIL
12
19
27
26
tbc
tbc
tbc
tbc
tbc
CPD For New Lawyers: Networking – Dundee
CPD For New Lawyers: Introduction to Advocacy Skills – Glasgow
CPD For New Lawyers: Scottish Legal Aid Board – Edinburgh
ILG Seminar – Contract Law
Insolvency Roadshow
Family Business
Legal Risks Conference
The Lawyer as an Employer
The Lawyer in Business
MAY
3
5
10
19
26
tbc
tbc
tbc
tbc
tbc
tbc
tbc
tbc
tbc
tbc
tbc
tbc
tbc
ILG Seminar – Business Continuity Planning
CPD For New Lawyers: Introduction to Advocacy Skills – Inverness
ILG Seminar – Bribery Laws
CPD For New Lawyers: Court of Session – Edinburgh
CPD For New Lawyers: Scottish Legal Aid Board – Glasgow
Buying & Selling Rural Property
Charity Law
Conveyancing Roadshow
Duties of a Company Secretary
Immigration & Asylum
Transfer of Wealth – executries, pension, pre-nups etc
Trusts & Executries for paralegals
Will Drafting Essentials
Win that Tender now!
Written Pleadings
Criminal Conference – Double Jeopardy
ILG Seminar – The Office of Fair Trading
ILG Seminar – Carbon Reduction Commitment
JUNE
9
16
23
tbc
tbc
tbc
tbc
tbc
tbc
tbc
CPD For New Lawyers: Networking – Aberdeen
CPD For New Lawyers: Challenging Business Environment – Edinburgh
CPD For New Lawyers: Scottish Legal Aid Board – Edinburgh
Business Development
Business Planning for Growth
Commercial Property Paralegals
Construction Law
Employment Law
Mental Health & Incapacity
Conveyancing Roadshow
*ILG seminars are open only to In-house Lawyers Group Members.
Videolinks available to Aberdeen, Angus, Glasgow, Fort William,
Inverness, Isle of Skye, Lerwick, Moray, Motherwell, Scottish Borders
and Stornoway.
FOR FURTHER INFORMATION
Details of venues, speakers, programmes and CPD hours are available on our
website www.lawscot.org.uk/update. Update’s aim is to continue to produce
good quality, affordable training for our members and to help develop a
comprehensive portfolio of events to support our members’ needs. If there are any
events you would like us to run in 2010-11, or any comments you have about the
Update events programme, please let us know. Also, if you are interested in
speaking at any of our events, we would be more than happy to hear from you.
Update Department,The Law Society of Scotland,
26 Drumsheugh Gardens, Edinburgh EH3 7YR.
Legal Post, LP1 Edinburgh 1.
Web: www.lawscot.org.uk
Email: [email protected]
Telephone: 0131 226 7411 Fax: 0131 476 8118
President
Whatever 2011 has in store, the year will not
be dull, as we can already foresee
Challenge of the new
In the tradition of columnists
everywhere, may I start by offering all
our readers best wishes for 2011. What
does the year hold in store for the
profession and the public we serve,
whether as private practitioners or inhouse lawyers in industry, commerce,
central or local government or
the fiscal service?
As I pen a second consecutive
President’s column looking out at
blizzard conditions, the first thing we
can expect in 2011 is probably more
disruption due to adverse weather. For
a country and a profession still feeling
the effects of the worst recession since
the 1930s, this is probably the last
thing needed, and yet it is in adversity
that we show the greatest resilience. I
hear the stories of solicitors making
the effort to get to the courts to ensure
the representation of their clients. I
hear the stories of use being made of
remote working by logging on from
home to ensure that transactions and
business can be progressed despite the
difficulties. I hear the stories of staff
making great efforts to get to
solicitors’ offices to make sure that the
clients are not let down.
We moan a lot about the weather in
this country – no more so than when
snow and ice render the roads, rail
networks and air travel difficult if not
impossible – but we knuckle down,
get on with it and serve the clients to
the best of our abilities.
Budget issues
The year ahead is going to bring a
number of challenges for the
profession. An early challenge will be
the Government’s approach to
reducing the justice budget, including
legal aid. By the time of publication,
our Legal Aid Negotiating Team, led
by Ollie Adair, will have met with
deans of faculties and presidents of
bar associations to seek views on
what economies can be offered by the
profession to the justice budget,
hopefully without reducing access to
justice or the reasonable income
expectations of those in the
President
Jamie Millar
profession offering legal aid.
As a profession, I know that we will
take a mature and pragmatic
approach to the issue of the
Government’s spending cuts – like
every other essential service, justice
cannot be immune from spending
cuts in these economically
challenging times – but we will be
seeking to ensure that the delivery of
the service is not unduly prejudiced.
More milestones
During 2011, we will also see the
implementation of the Legal Services
(Scotland) Act and the introduction
of licensed providers of legal services.
There is much work to be done to
ensure that the Society develops a
robust licensing regime, as authorised
to do by its members, and adopts a
new constitution, which allows it to
be a regulator but also matches the
democratic needs and aspirations
of its members.
The Carloway Review set up
following the Cadder judgment
could make far-reaching changes to
evidence and procedure in criminal
cases, and the Society is ready to
contribute to the debate and to
present the views of its members to
Lord Carloway. It is the Society’s
position that the best features of the
law of Scotland must not be
surrendered to the literal
implementation and blind
observance of the European
Convention on Human Rights.
We will have an election in May
2011 to appoint the administration
that will govern Scotland until 2015.
The Society has been preparing its
own manifesto and this will be
launched in January, in advance of
the various party manifestos, to
inform politicians of the issues
identified by the solicitors’ profession
as worthy of their attention in
government.
Nice to have
And the wish list for 2011? Well,
further progress on implementation
of the Gill Review would be a good
start, followed by the Thomson
Review being given a kick-start.
Further hitch-free rollout of ARTL,
lenders leaving their panels uncut, no
claims on the Guarantee Fund, a
reduction in the business of the
Scottish Legal Complaints
Commission, an increase in property
and corporate work, any cuts in the
justice budget not impacting on the
incomes of legal aid practitioners and
no redundancies in the in-house
sector due to spending cuts would
also be welcome. If I have missed
anyone out, let me know. The wish
list is perhaps not entirely achievable
but let’s make as good a fist of it as
possible.
Finally, my congratulations to
Cammy Ritchie on his appointment
as next year’s President and to Austin
Lafferty on his election as Vice
President for 2011-12. I look forward
to facing the challenges ahead with
Cammy and Austin, both of whom I
know will serve the interests of our
members well.
Forward features
Dispute resolution
The Journal’s next Who’s Who feature will publish in March 2011 and
will cover Dispute Resolution, including arbitration, mediation and other forms
of ADR. Expressions of interest from experienced and qualified individuals
should be sent to the Editor at [email protected] .
Other forthcoming features currently scheduled for the first half of 2011 are:
Professional Services, Family Law, Insolvency, Employment & Recruitment,
Education & Training, ABS
CONTACT: Elliot Whitehead
Tel: 0131 561 0020 Email: [email protected]
8 / theJournal January 2011
Opinion
The problems of definition that concerned the
committee of MSPs who considered the End of Life
Assistance Bill are not as serious as it made out
An issue that
will not die
As widely predicted, Margo
MacDonald’s End of Life Assistance
Bill failed, with a large majority of
MSPs voting against. The vote might
be seen to be out of step with the view
of Scottish society in general, recent
polls having indicated that 70-75%
would support voluntary euthanasia.
The Bill Committee did not
recommend the general principles
of the bill to the Scottish Parliament.
Many of the problems identified by
the committee arose because of
difficulties of interpretation or
definition. Among other things, it
concluded that:
making a case for the bill on the
grounds of “dignity” was
problematic, as different
interpretations of what it means to
die “with dignity” are impossible to
reconcile;
in relation to the argument for the
bill on the grounds of individual
“autonomy”, there was a strong
view that individual choice has to
be considered within the context of
society as a whole.
Other difficulties arose in relation
to the interpretation of “intolerable”
and “terminal illness”.
The committee’s difficulty with the
interpretation of “dignity” misses the
point. It is the individual’s own
concept of their personal dignity
which is surely of importance here,
not that which we as a society seek to
impose. The subjective view of dignity
surely underpins the concept of a
living will (more properly referred to
in Scotland as an advance medical
directive). In a living will, the
individual specifies in advance, while
they retain capacity, the circumstances
in which they do not wish treatment
to keep them alive, at a time when
they are unable personally to
communicate their wishes. That is
surely a clear statement of the
John
Kerrigan
John Kerrigan is a
partner in Morisons
LLP, Glasgow
individual’s own concept of dignity.
Objective concepts of dignity in this
field simply confuse issues. First, it has
been recognised for many years both
in Scotland and in England that
capacity is not wisdom or intelligence
– it is understanding. In particular,
capacity still exists even where the
decision taken by an individual
(which must be regarded as wholly
subjective) would be regarded by
others as wrong or even foolish.
The concept of dignity and the
individual’s own perception thereof
was considered by the House of Lords
in the case of Debbie Purdy, whose
arguments based on infringement of
her human rights had been rejected by
the Court of Appeal. In the view of all
five Law Lords, it did indeed amount
to a breach of her human rights not to
allow her to end her life with respect
and dignity. The Lords criticised the
DPP’s refusal to advise on when
prosecution might be brought. In
their view, the law interfered with
Ms Purdy’s right to respect for her
private life, as the way she determined
to spend her closing moments was
part of the act of living. It would
appear that they took into account
her own subjective view of dignity,
not the objective societal view applied
by the Court of Appeal.
As for “autonomy”, it is submitted
that in very personal matters of this
nature, autonomy is entitled to
“trump” societal interest. That right of
autonomy in its various guises is
surely the whole point of the
European Convention on Human
Rights. Debbie Purdy’s right to
autonomy was clearly recognised by
the House of Lords.
So far as interpretation of “terminal
illness” is concerned, I doubt that
most lay individuals would follow the
legislators’ difficulty here. Life
assurance offices appear to have no
difficulty in understanding, or
defining “terminal illness”,
particularly when it comes to
amortising a policy.
As for “intolerable”, I have to make
it clear that I did not support that
aspect of Margo MacDonald’s bill.
Although generally in support of
voluntary euthanasia for the
terminally ill, I had great difficulty
with the Dan James case (the young
rugby player who became paralysed
through a sporting accident).
I would not extend the right being
sought by Margo MacDonald to
individuals who simply find life
intolerable.
I remain unconvinced by
arguments that the introduction
of a law on voluntary euthanasia
would be detrimental to society as a
whole and would “push at the
boundaries of what is permitted”.
Surely that is a normal process in
any democratic society. Historically,
our legislators have been reactive
rather than proactive, and once
again their refusal of this bill
represents the forces of reaction.
The decriminalisation of
homosexuality and the introduction
of registered civil partnerships would
have never have happened had not
committed campaigners pushed
against the boundaries of then
applicable social norms. A society
grows and develops when its social
norms are properly tested.
There is no doubt but that there are
difficulties with voluntary euthanasia,
with viewpoints being polarised.
However, although Margo
MacDonald failed in her attempt, this
is not a topic which will go away.
Already, there have been several
unsuccessful attempts in England to
introduce legislation. With each
attempt the issues are being more
fully debated and perhaps focused
and refined.
The debate continues.
Letters
Cutting the part timers:
is it a false economy?
I made the mistake of thinking
my case would go ahead today.
Evidential child welfare
hearing. Two hours tops. I
forgot the golden rule of
litigation – what goes
ahead, doesn’t, and vice versa.
This was different, though.
My court originally had a parttime sheriff assigned. When a
five-day proof in another court
went off at the last minute,
however, the part timer was
cancelled and the available
sheriff parachuted in. He
had no time to look at the
papers in any of the four cases
before him: a debate, two
proofs and my evidential
Legal aid
priorities?
child welfare hearing. It was
3.10pm before my case was
adjourned due to lack of
court time.
My day out cost the Scottish
Legal Aid Board a pretty penny.
I dread to think what it cost the
privately funded opponent.
The reduction in part-time
sheriffs brought this about. I
think it will get worse.
If the Law Society of
Scotland, Scottish Legal Aid
Board or Scottish Courts
Service happen to glance at
this, could one or all of them
do me a favour please? Will
they collate the email addresses
of solicitors and the sheriff
clerks in Scotland into a
spreadsheet and share it with
us? Can we then use this
invention-of-the-wheel
technology, so that the courts
can keep us better advised of
their business, and we can keep
them better advised of ours, so
that we can plan a bit better,
and reduce public spending.
It’s never too early to email
your solicitor!
And while we’re at it, can
we start disposing of noncontentious cases by email in
all the courts?
Graham A Fordyce,
In October 2008, the Property
Standardisation Group (PSG)
published forms of offer of sale, one
for a sale with vacant possession
and the other for the sale of an
investment. The forms of offer were
set up as offers from the seller and
not from the purchaser: in the view
of the PSG, this reflected the
manner in which the market is
increasingly operating these days.
This has led me to reflect on
whether we should be looking for
a change of mindset in relation
to the procedure for the
purchase/sale of property in
Scotland, certainly at least in the
commercial sphere. This would
probably also involve a change of
mindset within the surveying
profession.
What currently happens in
practice? There is either an agreed
deal, following which a purchase
offer is submitted (typically in draft
these days), or else there is a
competitive bidding process in
which interested parties are invited
to have their lawyers submit formal
purchase offers. Purchasers’
lawyers will know nothing about
the property and will therefore
insert a whole host of clauses in
their purchase offer which they will
have pulled out of an electronic
precedent cabinet; some of these
clauses will be pertinent to the
property and others will have no
relevance at all.
The offers are considered and
typically only the principal terms
are reviewed, i.e. party/covenant,
price, entry and preconditions.
The rest is left to the lawyers to sort
out. All of these principal terms can
be, and typically are, incorporated
into heads of terms produced
by surveyors.
Is there not, therefore, a case for
a gear shift in the way we handle
commercial property sales and
purchases, with the consequence
that, in the case of an agreed deal,
the seller’s lawyer should produce
T F Reid & Donaldson, Paisley
I was interested in the article “Targeting best
value” by Professor Paterson (Journal,
December, 9), and in particular the matters
that he appears to consider to be priorities, as
established by the frequency of use of these
words and phrases:
Stakeholder – 5
Funding/funders – 3
Efficiency – 2
Policymaker – 2
Fairness – 0
Equality of arms – 0
Justice – 1 (in the term "Ministry of Justice").
Further comment seems superfluous.
Douglas Thomson, Solicitor Advocate, McArthur Stanton,
Dumbarton
Let’s rethink the
buying process
a draft offer, and in the case of
competitive bids, bidders should be
invited to submit, or more likely have
their surveyors submit, heads of terms.
Legal negotiation can then proceed
with the party who has produced the
“winning” heads of terms, and that
legal process can be kicked off by the
seller’s lawyer producing a draft offer.
During the period of negotiation
following the submission of the
successful heads of terms, there is no
binding legal obligation on the parties,
but equally, in the traditional scenario
where the seller elects to treat with a
formal purchase offer, there is no
legally binding obligation either until
missives are concluded.
The pressure for formal offers in
such situations comes often, I suspect,
from the selling surveyors, who feel
they need the comfort of a formal
signed offer. That accounts for very
little in reality, though, other than
perhaps some putative evidence of
serious intent because the prospective
purchaser has gone to the length of
instructing a lawyer. What will
happen, in any event, though, is that
the seller's lawyer will treat the offer as
a draft or invite it to be resubmitted as
such, so that the lawyers can
negotiate a single agreed form of offer
electronically. The days are long gone,
I hope, when offers are followed by
countless qualified acceptances back
and forth, until the contract is finally
encapsulated in a sequence of formal
letters which neither lawyer nor client
has the physical, or possibly
intellectual, stamina to understand.
As an alternative to negotiating the
Send your
letters to:
Email: journal
@connect
communications.
co.uk
or by post to:
The Editor,
The Journal,
Studio 2001,
Mile End,
Paisley PA1 1JS
f: 0141 561 0400
purchase offer – and this illustrates my
point – the seller's lawyer may instead
ignore the purchase offer and produce
a draft sale offer. This may suggest that
we are moving more to the English
property contract system, but that is no
bad thing if that is, in fact, better than
our historic Scottish practice.
Clearly, the suggested process works
best if the seller primes his lawyer that
the property is to be marketed so that
titles can be organised and all the
appropriate paperwork pulled together.
Often the same lawyer or law firm will
have acted in the purchase of the
property and will have all relevant
details of the property. The seller’s
lawyer will be able to produce a tailored
offer, and indeed with advance warning
from his client, can have it ready prior to
the bidding process, in a competitive
situation. That surely must facilitate the
conclusion of a speedy deal, as this
writer and others have no doubt found
in practice recently. My firm, for
example, was involved in a deal a few
months ago which involved more
than 50 investment properties. The
transaction kicked off with the
production of a tailored draft sale offer
and the deal was signed within 10 days.
There is presumably no issue about
fees here either, since, in the case of an
unsuccessful competitive bid, one is
saving the purchaser's lawyer the time
in putting together an offer for which,
one assumes, he or she will not paid in
any event, unless some lucky souls are
still able these days to charge for
abortive offers.
In short, should we not be
rethinking the whole process, given
that these days formal purchase offers
are increasingly treated as no more
than heads of terms anyway? Turning
the procedure on its head should
speed up the process and allow
property lawyers to concentrate on
other remunerative processes.
Although I am a member of the
PSG, I should stress that this letter is
written in a personal capacity.
Iain Macniven, Maclay Murray & Spens LLP
Feature Scotland Bill
Revolution
in the making
Long-awaited taxation powers for the
Scottish Parliament are signalled
with the publication of the Scotland
Bill. What new challenges will it
create for Scotland’s legal
professions? Fred Mackintosh
highlights the far-reaching
implications of the bill
T
he creation of the Scottish
Parliament was welcomed
by those who wanted to see
the back of Law Reform
(Miscellaneous Provisions) (Scotland)
Acts and saw the potential for informed
local law reform. Of course not
everyone has welcomed every piece of
legislation from Holyrood, but no one
can say that Scots law has not changed
from the stale and static creature of the
pre-devolution years. Will the changes
to the original 1998 Scotland Act set
out in the new Scotland Bill open the
door to similar creative work on
taxation in the Scottish Parliament?
It is worth remembering that on 11
September 1997, 63.5% of those
voting in the Scottish Parliament
referendum voted for the Parliament to
have tax varying powers; and yet in
recent years 87% of the combined
budget of the Scottish Government and
Scottish local authorities has come
from Whitehall in the form of block
grant. Why has there been a consensus
against the use of the Scottish variable
rate (SVR) created by the Scotland Act
1998? In all that time there have been
only two suggestions to use the SVR: a
proposed cut in income tax by
Tavish Scott MSP in 2007, and a
proposed increase by Patrick
Harvie MSP this year.
The answer is not hard to find: a
decade of increasing budgets since
1999 meant there was little need to
consider the use of the SVR. If Scottish
Ministers did nothing they got more
money, year on year. Why incur the
unpopularity of using the SVR to raise a
few hundred million a year when the
Scottish block grant was then
increasing by between £1 billion and
£2 billion each year as
UK public spending increased?
Defining Scottishness
The Scottish rate for Scottish taxpayers
proposed in the Scotland Bill is
different. Scottish ministers will no
longer be able to sit back, do nothing
and watch the money roll in from the
block grant. If the Scottish Parliament
fails to make a “Scottish rate
resolution”, as defined by what will be
s 80C of the amended Scotland Act
1998, the Scottish rate will not be
levied and the income from that tax
will not come either. A decision will
have to be made and responsibility
taken every year, before the start of the
tax year and probably at the time of the
Scottish Budget in November.
The coalition Government
appears to have attempted as much as
possible to limit divergence between
the system of income tax collection in
Fred
Mackintosh
Fred Mackintosh is an
advocate with Terra
Firma Chambers and
a teaching fellow in
Legal Practice and
Skills at the University
of Edinburgh
Scotland and the rest of the UK. By
amendment to s 6 of the Income Taxes
Act 2007, the setting of the Scottish
rate will cause an adjustment to the
basic, higher or additional rates of
income tax for Scottish taxpayers. No
additional band or bands are created
and only the Scottish rate is to be
controlled by the Scottish Parliament.
No doubt to the relief of many in
Scotland’s financial services sector, the
Scottish rate will not apply to income
from savings or dividends.
Perhaps the most challenging aspect
of the income tax proposals for those
in practice will be the definition of
“Scottish taxpayer” – by new ss 80D,
80E and 80F in the amended Scotland
Act. This new definition builds on the
previous definition – in the soon-to-berepealed s 75 – and will inevitably
require taxpayers and employers to
collect and retain the additional
information that will be required to
decide whether a particular taxpayer is
a Scottish taxpayer.
Fortunately for most Scottish
taxpayers, the question will be cut and
dried. They will have one home – in
Scotland – and live there for at least
part of the year. Those who have only
one home – in Scotland – but work
elsewhere in the UK will, it appears, be
Scottish taxpayers. The issue has the
potential to be particularly complex for
those who have a home in Scotland
and one elsewhere in the UK. In those
cases, the number of nights spent in
Scotland – as opposed to England,
Wales or Northern Ireland – will
become an issue of some importance.
At present, there are relatively few
solicitors and advocates in Scotland
who work in the field of residence for
tax purposes, but that will have to
change, as we get closer to the expected
first Scottish rate resolution in
November 2015.
Starting from scratch
Of course, the Scotland Bill will not just
affect income tax. In fact the changes
proposed to stamp duty land tax and
landfill tax have the potential to be
significantly more radical and
disruptive. While the income tax
changes create the potential for many
individuals to pay a different amount
of income tax because they are Scottish
taxpayers, stamp duty land tax and
landfill tax will be entirely devolved.
In Command Paper 7973,
accompanying the bill, the UK
Government has signalled its intention
that these two taxes will cease to apply
in Scotland from April 2015 and the
Scottish Parliament will then be able to
levy its own taxes in respect of land
transactions and disposals of waste to
landfill in Scotland. Two new taxes will
have to be created to fit into the
autonomy devolved to the Scottish
Parliament in what will be chapter 3
and chapter 4 of part 4A of the
amended Scotland Act.
A Scottish land transaction tax could
well be a significantly different beast to
the existing SDLT. There will be no
obligation on the Scottish Parliament
to – for example – provide a first-time
buyers’ exemption, restrict the
transaction tax to leases of seven years
or more in all cases, or retain the
current rules about the treatment of
the interest of a beneficiary under a
trust. Many practitioners and those in
the commercial and residential
property sectors will of course be
interested in lobbying for the new land
transaction tax to recognise the
peculiarities of the Scottish market, but
other factors will be at play in what
will be a fast-moving decision.
For those in the commercial
property sector there will be a concern
that the Scottish Parliament will soon
have under its control both property
transaction tax powers and the
Scotland-wide system of non-domestic
rates. Ireland will be introducing a land
value tax from 2013, and the new
Scottish land transaction tax system
would potentially provide the
framework to collect the land values
required for a land value tax. The lack
of such a valuation mechanism has
always stumped proposals for site
valuation rating-based taxes in the past.
In the area of landfill tax, the Scottish
Government has already instructed
research on the options for setting a
Scottish landfill tax and the impact this
Continued overleaf >
Perhaps the most challenging aspect of the
income tax proposals for those in practice
will be the definition of “Scottish taxpayer”
– by new ss 80D, 80E and 80F in the
amended Scotland Act
Feature Scotland Bill
Taxing questions: evidence on the bill
The Scottish Parliament has set up
a Scotland Bill Committee “to
consider the Scotland Bill and report
to the Parliament on any relevant
Legislative Consent Memorandum”,
Peter Nicholson writes.
At its evidence session on 14
December, Michael Moore MP,
Secretary of State for Scotland,
Lord Wallace of Tankerness
QC, Advocate General for
Scotland, and David Gauke
MP, Exchequer Secretary, HM
Treasury, among others, were
questioned on the bill.
MSPs were particularly
interested to know why the bill
did not confer any powers in
relation to corporation tax.
Mr Moore said that the main
reason politically for ruling
that out was to maintain
Scotland’s place within the
United Kingdom and the
stability of the UK; and
economically that it “would
not be appropriate to have
different corporation taxes
north and south of the border,
not least because of the risks
of tax arbitrage and other
associated issues”.
Commenting that tax
receipts could be volatile, he
added: “We also need to
look at decisions on where
people base their tax
headquarters. Corporations
are much more mobile than
the income tax base, which is
Continued from page 13 >
the primary base that our tax
proposals are looking at.”
Mr Gauke confirmed that it
would be for the Scottish
Parliament to come up with
proposals for new taxes that it
would like to introduce. “It will
be expected to provide
evidence that the new tax
complies with particular
criteria: it must not impose a
disproportionate negative
impact on the UK
macroeconomic policy, and it
must not impede the single UK
market to any degree. Those
points are very important.”
The potential for the new
tax to create incentives, or
economic distortions and
arbitrage in the UK, or tax
avoidance across the country,
would also be considered, as
would the impact on
compliance burdens across the
UK, compatibility with EU
legislation such as that
covering state aid, the single
market, and human rights.
On another subject, Lord
Wallace confirmed to the
committee that early in the
new year the Government will
publish the report of the
expert group under Sir David
Edward that was tasked with
making recommendations on
an issue raised with the
Calman Commission by the
Court of Session judges – the
ability, due to s 57(2) of the
Scotland Act 1998, to
interrupt criminal proceedings
by challenging acts by or in
name of the Lord Advocate,
perhaps by appeal all the way
to the Supreme Court. If the
Government concluded that
the provision should be
amended – a matter that was
still under consideration – a
draft clause to add to the bill
at committee stage would
be published shortly
afterwards.
On the issues raised he
commented: “There have been
representations on both sides
as to whether there should still
be a route to the Supreme
Court. The argument for that
route is that there should be a
standard or uniform
interpretation of [human]
rights throughout the United
Kingdom. The contrary
argument is that criminal trials
and criminal appeals in
Scotland never went to the
House of Lords in times past…
“The issue is complex. There
are important issues of
principle on both sides. The
expert group, which… was of
considerable eminence,
wrestled with the issue, and in
turn I am having to wrestle
with its report… The group
was well balanced, and its
report does justice to the
issues.”
will have on waste policy and plans for
a zero waste society. Given the tax’s
close policy link to waste management
within Scottish and local government,
we should expect to see early
movement on this area once Royal
Assent is achieved.
The bigger picture
The Scotland Office expects the powers
to levy these two taxes to be available
for use from April 2015, and to meet
that deadline the legislation to create
two new Scottish taxes will have to
have been drafted, consulted on and
then put through the Parliament to
receive Royal Assent in the next couple
of years.
Of course these new tax powers for
the Scottish Parliament will not exist in
a vacuum. EU state aid questions are
important when tax rates vary within a
member state, and the changes to the
financial arrangements between the
Scottish authorities and the UK
authorities envisaged in Command
Paper 7973 are clearly designed to
ensure that article 87 of the EC Treaty
is not breached.
The example of the aggregates levy is
instructive and reminds us all that that
EU law seeks to prevent tax
discrimination between domestic
products and imported products
originating elsewhere in the EU. The
Calman Commission had
recommended that this levy be
devolved to Scotland, but that proposal
has fallen foul of a challenge by the
British Aggregates Association to the
levy in the European Court of Justice.
The court recently struck down the
Commission’s approval of the 80%
rebate that operates in Northern
Ireland (British Aggregates Association v
Commission [2010] All ER (D) 46) on
the basis that the different treatment of
aggregates imported to Northern
Ireland from the Irish Republic from
those mined in Northern Ireland was a
breach of the provisions of article 87.
As the Scottish Government considers
how to tax disposals of waste to landfill
without creating cross border waste
flows on the back of a differential
tax system, the example of the
aggregates levy should not be far from
all our minds.
The next five years will see a level of
unprecedented change in tax law for
Scottish residents and Scottish
companies, but the changes we know
about now are only part of the story. In
what will be s 80B of the Scotland Act
the Scottish Parliament will acquire the
power to create new, as yet undefined
taxes with the consent of the
Westminster Parliament. Pre-legislative
tests will be applied by the Treasury to
consider whether a new tax would
create economic distortions and
arbitrage within the whole UK,
whether it would increase tax
avoidance or compliance costs, and
whether it will be compliant with EU
obligations such as state aid. We can’t
yet know what new taxes future
Scottish Parliaments will seek to create
in the years to come, but the days when
Scottish tax law was stuck with the
fiscal equivalent of the Law Reform
(Miscellaneous Provisions) (Scotland)
Acts are gone for good.
Registers
Some advice from the Registers Sasine
team on points that can cause difficulty
Sasine service
Multiple property/county
sasine deeds
The Sasine Register records more
than 50,000 deeds a year. Some of
these deeds cover a large number
of subjects that may be spread over
multiple counties. Given that each
sasine application must be
processed in chronological order,
such large deeds can cause a delay
in the recording of all the deeds
presented after it.
If you are applying to record
deeds with more than 100 subjects
or deeds that cover property in
more than one county, we can
offer you an upfront vetting
service. If you are about to prepare
such a deed, please contact Stuart
Thom (0131 479 3646) or Sheetal
Mehra (0131 528 3858) to discuss
the best format for presentment.
The aim of this check is to
ensure that the deed would not
require to be returned for
amendment when presented for
recording. This mirrors a similar
service provided by the Land
Register intake team. There is no
additional charge for this service.
Completing the Sasine
Application Form
The Sasine Application Form
(SAF) Guidance Notes have been
updated to provide clear and
concise information on how to fill
ARTL UPDATE –
as at 10 Dec 2010
35,013 transactions have
taken place
519 solicitors’ firms are
currently on the ARTL system
26 lenders are currently on
the ARTL system
13 local authorities are using
the system.
For up-to-date information
and a full list of participating
practices and companies,
go to: ros.gov.uk/artl
in a Sasine Application Form. The
notes can be found under “Forms”
at: ros.gov.uk/professional/
index.html. They provide
examples of how certain fields –
such as applicants and granters –
need to be completed.
We would ask you to pay
particular attention to boxes 8,
9 and 10 on the SAF as we have
found that errors in these areas
cause a considerable number of
sasine intake rejections. Boxes 8, 9
and 10 deal with preservation and
execution requests. For standard
sasine recordings the answer to
these questions should be “No,”
“No” and “0.” If the deed is to
be preserved at the National
Archives, then either box 8 or 9
should be marked “Yes” and
the number of extracts noted in
box 10, and remember to submit
the additional fees.
The SAF is the solicitor's
instruction to the Keeper and must
be completed as fully and
accurately as possible. The
instruction given on the SAF to
record in a particular county will
be followed to the letter and the
deed will be presented in the
county marked on the SAF.
However, if the county in gremio is
different, the deed will have to be
withdrawn from the Register.
Care should also be exercised in
Fee changes – 10 January 2011
New fees come into effect on
10 January 2011. We have
created a special micro-site as
the major part of our support
to customers and stakeholders.
The site will provide all the
information you need to
understand the new fees and
how to avoid being charged
for rejections. The site is
called “Getting it Right”:
ros.gov.uk/gettingitright.
This tab can be found on
both the professional and
public sections of our website.
The fee calculator has also
been updated.
As well as the micro-site, we
have also issued four new
Registers Updates to cover all
the changes. They are:
Registers Update 30 – Fee
Changes; Registers Update
31 – Pre-registration
Enquiries; Registers
Update 32 – Personal
Presentments; and Registers
Update 33 – Rejections.
The Updates can be
downloaded from our website
ros.gov.uk/updates/ if you have
not received them in the mail.
If you would like to receive future
Updates by post or by email please
contact [email protected]
determining whether recording in
the Sasine Register or registration
in the Land Register is the correct
course of action, as presentment to
the wrong register will result
in rejection.
If you require further information on the
Sasine Register and the process of recording,
contact Stuart Thom (0131 479 3646;
[email protected])
or Sheetal Mehra (0131 528 3858;
[email protected])
Feature Family law
Kenneth Norrie reports on developments
in Europe that could force a fundamental
rethink of the application of the Hague
Convention on International Child Abduction
T
he basic premise of the
Hague Child Abduction
Convention is that the
welfare judgment required
when parents disagree about where the
child is to live is properly made by the
court of the child’s habitual residence
(the “court of origin”). So if the child is
wrongfully taken to another country,
the court there (the “requested court”)
must return the child to its habitual
residence “forthwith”.
The traditional approach has been
to minimise the opportunities for the
requested court to assess whether
return would be in the welfare of the
child, because that assessment is time
consuming, and to keep the parameters
of the specified exceptions to retention
within very narrow bounds, for
otherwise the Convention’s principles
risk being entirely subverted.
This approach is justified by the
major purpose of the Convention,
which is to remove any incentive an
abducting parent would have in seeking
a jurisdiction that is more likely than
the child’s home jurisdiction to find in
that parent’s favour.
Speed is of the essence, which is
why it is simply not appropriate
for the requested courts to spend
much time in the sort of minute
examination of the welfare of the
child that so often bedevils the
process in the domestic context. (In
the recent decision of NJDB v JEG
The welfare
imperative
[2010] CSIH 83, a domestic contact
dispute, determining what was in the
welfare of the child took 52 days of
evidence spread over nine months:
though the Inner House was clearly
shocked at this timescale, weeks of
evidence are all too common in such
disputes.) The traditional approach is
followed by courts around the world,
including courts in Scotland.
Abduction: the reality
Yet even supporters of the Hague
Convention recognise its limitations.
It was drafted in the belief that the
majority of abductions would be by
non-resident parents (normally
fathers) seeking to subvert decisions
already made by courts, moving the
child to an alien country where a
second bite of the cherry would
hopefully get a better result. The very
language of “abduction” conjures
images of men snatching children
from their legitimate carers, bundling
them into the backs of vans and
heading for the airport.
In reality, abductions are more
often than not perpetrated by the
resident parent who has, and is
exercising, full “custody” rights: that
parent “abducts” only in the technical
sense of acting in some way that
denies the non-resident parent his
“rights of custody” – which in practice
need be no more than a right to
prevent removal from the jurisdiction.
And frequently the country to which
the child is abducted is not an alien
land, but the mother’s original home
country, with which the child is often
already familiar.
The other major failing that has to
be recognised with the Hague
Convention is that, insofar as it
aimed to reduce the number of
abductions by removing the
incentive, it has failed abjectly in that
aim. The number of international
child abductions (as defined by the
Hague Convention) continues to rise
across the numerous countries that
have ratified the Convention, raising
serious doubts as to whether the
predominant parental motivation is
indeed to seek a second bite at a
welfare-flavoured cherry: if it is not,
then their actions are not addressed
by the aims of the Convention.
Welfare focus
Perhaps in response to a recognition
of these limitations to the effectiveness
of the Hague Convention, the law
seems to be turning more and more
away from immediate return as an
imperative and towards the comfort
zone of welfare.
In, for example, the exercise of
judicial discretion in deciding
whether to return a child when one of
the defences has been made out
(there being no discretion when none
of the defences is established), the
House of Lords held that the court
was entitled to take account of wider
considerations of the child’s rights
and welfare: Re M (Children)
(Abduction) [2008] 1 AC 1288 at
paras 43 and 44. Direction from
Europe goes much further in the
same direction.
Brussels II-bis
Article 11 of the revised Brussels II
Regulation (Council Regulation (EC)
2201/2003) modifies the application
of the Hague Convention in cases of
abductions from and to member
states of the European Union.
Tightening up the already tight
“grave risk” defence in article 13(b) of
the Hague Convention, the requested
court cannot refuse to return the child
even when that defence has been
made out, where it is established that
adequate arrangements have been
made to secure the protection of the
child on his or her return.
More importantly for our purposes,
if the requested court refuses to return
the child, the applicant parent may
require the court of origin to examine
the question of “custody” of the
child (using, of course, a welfare
perspective) and, if that court makes
an order in favour of the parent from
whom the child has been abducted,
the requested court must abide by
this order. Effectively, the court of
origin is given the power to override
the requested state’s refusal.
Strasbourg speaks
Even more significant is the decision
of the Grand Chamber of the
European Court of Human Rights
in Neulinger & Shuruk v Switzerland,
6 July 2010. The question before the
Grand Chamber was whether the
Swiss court’s approach to the Hague
Convention was compatible with the
article 8 right to family life.
A Swiss woman living in Israel had
a child with her Israeli husband. But
the father then joined an extremist
religious sect and wished his wife to
submit to its doctrines and to bring
up the child within its severely
limiting strictures. The father’s
increasingly erratic behaviour
resulted in the Israeli court awarding
custody to the mother and limiting
the father’s rights to supervised
contact twice a week. Unable to bear
the father’s interference any longer,
the mother took the child to
Switzerland, breaching the father’s
right to prevent the child’s removal
from the jurisdiction.
The issue before the Swiss court
was whether there was a grave risk of
harm in sending the child back to
Abductions are more often
than not perpetrated by
the resident parent who
has, and is exercising,
full “custody” rights
Israel and the court took the
view that, the Israeli courts and
social services having proved
themselves perfectly able to
protect the mother and child
from the overbearing
influence of the father and
his extremist views, there
was no grave risk of harm.
This decision follows the
approach of many
jurisdictions across the
world where this defence is
interpreted narrowly.
The European Court of Human
Rights nevertheless held that the
order to return amounted to an
interference with both the mother’s
and child’s right to family life.
Though that court’s jurisdiction is
limited to determining the
compatibility of state laws and
actions with the ECHR, and not the
determination of the proper
interpretation of state law, it
nevertheless concluded that in the
present case, the “grave risk” defence
to return of the child contained in
article 13(b) of the Hague
Convention had “manifestly not been
met in the present case” (para 130).
The problem was that the Swiss
courts had not paid enough attention
to the welfare of the child. The
court pointed out (para 135) that
there is currently a broad consensus,
traced in part to article 3 of the UN
Convention on the Rights of the
Child, that in all decisions concerning
children their best interests must
be paramount.
This was inherent in article 8 of the
ECHR, and it followed that article
13(2) of the Hague Convention had
to be interpreted in conformity with
article 3 of the UN Convention, in
order to be ECHR compatible. The
result was that article 8 prevented
children from being returned
“automatically or mechanically”: the
Hague Convention was not to be
interpreted to require return without
an assessment of the individual
child’s welfare (para 138).
Though domestic courts had a
certain margin of appreciation, it was
the role of the European Court to
ensure that domestic courts
conducted in every case “an in-depth
examination of the entire family
situation and of a whole series of
factors, in particular of a factual,
emotional, psychological, material
and medical nature”, making a
balanced and reasonable assessment
of each person’s interests “with a
constant concern for determining
what the best solution would be for
the abducted child in the context of
an application for his return to his
country of origin” (para 139).
The Swiss courts had not carried
out this type of individualised welfare
assessment and had thus acted
incompatibly with article 8 of the
European Convention.
Start again
This case represents a truly seismic
shift in judicial attitudes to the Hague
Convention. The presumption, or at
least starting point, that the best
solution for the abducted child is its
return to its habitual residence is
jettisoned in favour of a neutral
stance, requiring an in-depth
examination from the point of view
of the child’s welfare whether it
should be sent back or not. How UK
judges will apply this approach
remains to be seen.
Kenneth McK Norrie is a Professor of
Law at the University of Strathclyde
Feature Wikileaks
War on
the web
The Wikileaks affair raises sharply various questions
of legality in relation to computer use and misuse,
as John D McGonagle discusses
W
ikileaks is the
whistleblowing website
which is in the process of
making available for
download more than 250,000
confidential US diplomatic cables.
The cables contain correspondence
between American embassies
throughout the world and the US
State Department, and their
contents are proving to be highly
embarrassing for the US Government
and its allies.
Wikileaks’ founder Julian Assange
is currently in England fighting
extradition to Sweden on sex crime
charges. It’s been suggested that these
charges have been exaggerated due
to political pressure from the US
Government, which is keen to have
Assange brought to justice – be it for
sex crimes, contravention of the
Espionage Act, conspiracy or trafficking
in stolen property, or some other as yet
unspecified crime.
What crime?
By the time you read this, a valid charge
may have been identified, but at the
moment, and sex crimes aside, it’s fairly
hard to identify a legal basis upon which
federal prosecutors would validly pursue
Assange. There are some provisions of
the Espionage Act that might apply,
such as those regarding “gathering,
transmitting, or losing defense
information”, while it also criminalises
the act of “obtaining” a document
“connected with the national defense”,
if done “for the purpose of obtaining
information respecting the national
defense with intent or reason to believe
that the information is to be used to the
injury of the United States, or to the
advantage of any foreign nation”.
However, relying on the Espionage
Act in these sort of circumstances isn’t
usually successful. See, for example, the
famous “Pentagon Papers” case of 1972,
which involved a failed attempt to
prosecute the New York Times.
At the moment,
and sex crimes
aside, it’s fairly
hard to identify
a legal basis
upon which
federal
prosecutors
would validly
pursue Assange
In the present day, and in light of
Pentagon Papers, could the US
Government realistically show that
Assange intended to harm the United
States or help a foreign nation? It’s
unclear. Assange is sure to argue that he
and/or Wikileaks merely disseminated
information, and that the US
Constitution's First Amendment
defends this right to speech and also
the public’s right to receive that speech.
(Incidentally, it appears not to matter
that Assange is a non-US citizen,
because immigration cases aside,
it’s hard to identify circumstances in
which non-citizens are treated
differently from citizens.)
In the UK, the Official Secrets Act
of 1911 still provides the main legal
protection against “espionage” of the
type which Julian Assange and/or
Wikileaks have allegedly been
perpetrating. Under s 1, a person
commits the offence of “spying” if he
or she, for any purpose prejudicial to
the safety or interests of the state,
“obtains, collects, records, or publishes,
or communicates to any other person
any secret official code word, or pass
word, or any sketch, plan, model,
article, or note, or other document
which is calculated to be or might be or
is intended to be directly or indirectly
useful to an enemy”. This suggests
that, in the event of Assange and/or
Wikileaks disclosing UK Government
information, the same problems in
relation to proving actual intention to
help enemies would arise.
Of course, the information wasn’t
originally obtained legally. Arguably,
the only clear-cut crime in the present
scenario is the alleged leak of the
cables by Bradley Manning, the State
Department or Pentagon employee
who, if guilty, has surely breached
either his contract of employment or
some other duty of confidentiality
given to him when he was granted
access to the sensitive information.
On the assumption that Manning
disclosed the cables to Assange, and
that his disclosure was unlawful, does
this affect the legality of Assange’s own
disclosure of information?
US cases regarding subsequent
dissemination of unlawfully disclosed
information indicate that as long as the
speaker or disseminator is not the party
which broke the law, the speaker or
disseminator cannot be punished. The
classic case is Bartnicki, in which the
court stated: “a stranger's illegal
conduct does not suffice to remove the
First Amendment shield from speech
about a matter of public concern”.
A possible chink in the protection
afforded by this case is that the reporter
should not induce the illegality. Does
Wikileaks’ widely known appeal for
anonymous submissions constitute
inducement? Time will tell.
Dirty war
The other big legal issue to arise is direct
denial of service (DDoS) attacks. The
Wikileaks website, or more accurately,
the computer servers which hold or
“host” its content, have been
bombarded from mysterious sources by
DDoS attacks. While the means,
motives, and targets of a DDoS attack
vary, they generally consist of concerted
efforts by a person or persons using
computers to flood the target system
and force it to shut down, thereby
denying service by the system to
legitimate users, temporarily
or indefinitely.
Supporters of
Wikileaks have
retaliated by
attacking sites such
as mastercard.com
and the Swedish
prosecution authority’s site.
Governments and corporations
across the world are preparing at the
time of writing for what the tabloids
are referring to as “cyber war”.
DDoS attacks are clearly illegal in a
lot of jurisdictions. In the UK, ss 33 to
36 of the Police and Justice Act 2006
amend the Computer Misuse Act 1990
to criminalise the carrying out of “any
unauthorised act in relation to a
computer” where the person “has the
requisite intent and the requisite
knowledge” to carry out the act. The
requisite intent is to carry out the act
by: (i) impairing the operation of any
computer; (ii) preventing or hindering
access to any program or data held in
any computer; or (iii) impairing the
operation of any program or the
In the case of
Wikileaks, it is
likely that ISPs
are within their
rights to host
contentious
content, at least
until it is shown
to the ISP that
to publish the
information is
unlawful. It is
far from clear
whether
that is so
readability of any data.
The intent need not be directed at
any particular computer or any
particular program or data, and the
wording is wide enough that paying
someone else to launch an attack will
still be a crime, with a maximum
penalty of 10 years in prison. The US
has similar laws in place, and a man
was jailed in 2009 for instigating DDoS
attacks against Scientology websites.
Tactical fight
What will happen next in the Wikileaks
saga is hard to predict. It may be that
the US Government decides to eschew
legal solutions and apply pressure to
Wikileaks through more pragmatic and
practical means. For example, online
payment service provider PayPal cut off
the Wikileaks account, eliminating one
of the easiest means for donors to send
money to the organisation.
Wikileaks’ original method of
defending itself from DDoS attacks was
to move to a larger internet provider
whose servers would be more likely to
withstand a DDoS assault. Wikileaks’
provider of choice was Amazon.com
and its much-vaunted EC2 cloud
computing system (aws.amazon.com/
ec2/) which operates on vast banks of
computers, meaning that network
capacity can be quickly scaled up or
down to meet surges in traffic.
The tactic was working well until
Amazon.com decided to terminate
Wikileaks’ contract. In a blog post
(aws.amazon.com/message/ 65348/),
Amazon.com denied that it was acting
under pressure from politicians, saying
Wikileaks had breached its terms by not
owning the rights to the content it was
publishing. I imagine Amazon.com
might also have been a bit nervous
about potential liability for the allegedly
illegally obtained cables. Whatever the
case, for organisations which have
adopted cloud computing and made
their IT dependent on a third party, it’s
arguably an alarming precedent. A clear
lesson is that organisations should
closely examine a cloud computing
provider’s terms and conditions of
service before signing up to the offering.
Post-Amazon,
Wikileaks moved
back to Swedish
internet service
provider (ISP)
Bahnhof AB,
whose chief
executive
officer Anna
Mossberg has
stated that
the
company will only cease to support
Wikileaks if Swedish police show that
the site is breaking Swedish law.
In the EC, the Directive on Electronic
Commerce shields ISPs from liability for
content they host. The directive defines
the circumstances under which internet
intermediaries should be held
accountable for material which is
hosted, cached or carried by them, but
which they did not create. In the case of
Wikileaks, it is likely that ISPs such as
Bahnhof AB are within their rights to
host contentious content, at least until it
is shown to the ISP that to publish the
information is unlawful. As we have
seen, that is far from clear.
The next problem for Wikileaks is
that its wikileaks.org web address was
withdrawn because its domain name
service provider EveryDNS.net claimed
that Wikileaks had violated part of its
acceptable use policy, which requires
members not to “interfere with another
member’s use and enjoyment of the
service or another entity’s use and
enjoyment of similar services”.
Wikileaks had interfered with other
members’ service because, said
EveryDNS, “wikileaks.org has become
the target of multiple DDoS attacks.
These attacks had, and future attacks
would, threaten the stability of the
EveryDNS.net infrastructure,
endangering access to almost 500,000
other websites”. It seems odd that
Wikileaks can be said to be
“interfering” with use of the service by
being the victim of a crime. At best,
EveryDNS has interpreted its
acceptable use policy very widely.
Wikileaks’ solution has been to
move to Switzerland, with a new
domain (wikileaks.ch). The domain
name is registered by the Pirate Party of
Switzerland, associated with an IP
address in Sweden, and points to a web
address in France (where the Wikileaks
documents are actually believed to be
hosted). If wikileaks.ch is also
withdrawn, Wikileaks has announced
that content will still be accessible by
bypassing the DNS look-up and typing
in Wikileaks’ actual IP address
(http://88.80.13.160/)
Sweden’s move to have Assange
detained in the United Kingdom for
now, on whatever charge, provides time
for a case to be fashioned against him.
In light of the Wikileaks affair, and the
likely high-profile casualties of the
“cyber war” resulting from it, the
pressure to charge Assange is likely to
become intense. But would it change
anything to do so?
John D McGonagle is a senior solicitor
with Brodies LLP, Glasgow
Feature Community payback orders
Community payback orders under the Criminal Justice and
Licensing (Scotland) Act 2010, come into force on 1 February
2011 along with the presumption against short prison
sentences. Ian Donaldson explains what the new orders involve
Payback time
T
he Criminal Justice and
Licensing (Scotland) Act
2010 runs to more than
200 sections, covering
issues ranging from taxi licensing
to evidence disclosure. The Act
received Royal Assent in August
and its provisions are now being
brought into force.
Two key sections of the Act (ss
14 and 17, with the related ss 20
and 21) are to be commenced on
Tuesday 1 February 2011. These
concern the community payback
order and the presumption
against short periods of
imprisonment.
Bringing in the new
The community payback order
is set out in s 14, which itself
inserts the provisions into the
Criminal Procedure (Scotland)
Act 1995. The community
payback order will apply to
offences committed on or after
1 February 2011. For such offences
it will replace community service
orders, probation orders and
supervised attendance orders.
Community reparation orders
are also being repealed, although
in practice they have not been
used for some time.
Offences committed before
1 February 2011 will be sentenced
under the existing arrangements,
no matter when they come to
court. Where an offence is found
to have been committed over a
period of two or more days
which straddle that date, it will
be regarded as having been
committed on the first of those
days. Community sentences
arising from offences committed
before 1 February 2011 will be
unaffected by the new legislation
and will run alongside the new
system until they are completed.
Other existing community
sentences, including the drug
treatment and testing order and
the restriction of liberty order,
will remain unchanged and
available to courts.
The presumption against short
prison sentences, set out in s 17,
also inserts its provisions into
the 1995 Act. It prevents courts
from imposing a prison term of
three months or less unless the
court has concluded that there is
no other appropriate way of
dealing with the offender. If the
court does so conclude, it must
state its reasons for reaching that
conclusion and have the reasons
entered in the record of court
proceedings. Like the
community payback order, the
presumption will apply to
offences committed on or after
1 February 2011.
Scope of the CPO
A community payback order
will consist of a number of
requirements. Nine are set out in
the Act. From these, the court
may select one or more in
deciding on the makeup of the
order. The requirements are:
• (1) Unpaid work or other
activity requirement: either
level 1 (20-100 hours) or
level 2 (101-300 hours)
• (2) Offender supervision
requirement
• (3) Conduct requirement
• (4) Compensation
requirement
• (5) Residence requirement
• (6) Programme requirement
• (7) Mental health treatment
requirement
• (8) Drug treatment
requirement
• (9) Alcohol treatment
requirement
will be available to all courts in
Scotland. Justice of the peace
courts will, however, only be
able to select from the first five of
the requirements listed above
and will only be able to impose
the first requirement at level 1.
will be regarded as an alternative
to custody, but courts will also
be able to impose a community
payback order with a restricted
range of requirements (the first
three above) as an alternative to,
or as well as, a fine. Where the
law would previously have
mandated short jail terms (or
more recently supervised
attendance orders) for minor
fine defaulters, courts will now
impose a community payback
order with a level 1 unpaid work
or other activity requirement.
The fine defaulter will still have
the opportunity to pay the fine
after the imposition of a
community payback order, and
if he or she does so the court
must then discharge the order.
Imposition of a community
payback order does not prevent a
court from imposing any other
sentence as well – other than
imprisonment – or making any
other order.
Before imposing a community
payback order, a court must take
account of a report on the
individual from the local
authority’s criminal justice
social work team. A copy of the
report must be provided to the
offender’s solicitor as well as to
the offender themselves and to the
prosecutor. No report is needed,
however, if the court imposes only
a level 1 unpaid work or other
activity requirement. It will
therefore be important in such
cases that defence solicitors make
clear to the court any reason, such
as physical disability, why an
unpaid work or other activity
requirement might not be an
appropriate option.
A court must also confirm
before it imposes a community
payback order that the offender
is willing to comply with each of
the proposed requirements. If
the offender is not willing, the
order cannot be imposed and
the court will have to consider an
alternative disposal, which may
be a fine or a prison sentence as
appropriate.
The offender’s willingness to
comply is however not necessary
when the court imposes a
community payback order as a
penalty for fine default.
Particular requirements
Some important points to bear in
mind as far as the requirements
are concerned:
• Unpaid work or other
activity requirement
An unpaid work or other activity
requirement must be completed
within three months (up to 100
hours) or six months (more than
100 hours), unless the court states
otherwise at the point of sentence.
It will be important for courts
to be aware before sentence of
any reason, such as full time
employment, which might justify
a longer completion period. Since
social work reports will not be
required for imposition of a
level 1 requirement, it will be
particularly important for defence
agents to bear this in mind in
such cases.
Although not set out in
legislation, practice guidance for
criminal justice social workers
makes clear that unpaid work
placements must begin within
seven days of sentence.
An unpaid work or other
activity requirement may only
be imposed on an offender aged
16 years or above.
It is intended that “other
activity” can involve activities
aimed at improving the
individual’s employability
prospects or addressing other
underlying issues which are
influencing the individual’s
offending behaviour. It is for the
offender’s case manager at the
local authority criminal justice
social work department to
determine, after sentence, how
many of the hours specified, if
any, are to be allocated to “other
activity”. The maximum number
of hours which can be allocated
to “other activity” is 30% or
30 hours, whichever is lower.
Where an order is imposed
consecutively with another order
(or orders), the maximum
number of hours of unpaid work
or other activity that can be
imposed as part of the order is
300 less the net balance of actual
hours outstanding on existing
requirements. As noted above,
there will be cases in which a
social work report is not provided
to the court before sentence
and it will be important in
such cases that defence agents
inform the court of any
pre-existing unpaid work or
other activity requirements of
which they are aware.
• Offender supervision requirement
The court must impose an
offender supervision requirement
in the following situations: where
the individual is aged under 18;
or where the court imposes any
requirement other than an unpaid
work and other activity
requirement.
• Conduct requirement
A conduct requirement will be
imposed when the court requires
that the individual must do, or
refrain from doing, specified
things to secure or promote
good behaviour or to prevent
further offending.
• Compensation requirement
A compensation requirement
can be imposed to require an
individual to pay compensation
for any personal injury or other
matter incurred as a result of the
individual’s offending behaviour.
Compensation payments will be
made to the sheriff clerk’s office.
• Residence requirement
A court may require that an
offender live in specified
accommodation where there will
be some form of professional
supervision. Such accommodation
must have been recommended as
appropriate in a report by a local
authority officer. In other cases,
a residence requirement may
require an offender to reside at a
particular private address.
• Programme requirement
Before a programme requirement
can be imposed, the programme
must be recommended to the
court, usually by means of a
criminal justice social work
report, as being suitable for
the offender.
• Mental health treatment
requirement
The purpose of imposing a
mental health treatment
requirement is to ensure that
an individual who has been
diagnosed with a mental health
condition receives support, care
and treatment. A mental health
condition will include any mental
illness, personality disorder or
learning disability as defined in
Feature Community payback orders
Further information
Further information on the
community payback order is
available on the Scottish
Government website:
www.scotland.gov.uk/Topics/Justice/
public-safety/offender-management/
offender/community or contact
[email protected]
Useful links
Reforming and Revitalising:
Report of the Review of
Community Penalties:
www.scotland.gov.uk/
Publications/2007/11/20142739/8
Scotland’s Choice: Report of
the Scottish Prisons
Commission:
www.scotland.gov.uk/Publications/
2008/06/30162955/16
Protecting Scotland’s
Communities: Fair, Fast and
Flexible Justice:
www.scotland.gov.uk/Publications/
2008/12/16132605/0
Criminal Justice and Licensing
(Scotland) Act 2010:
www.legislation.gov.uk/asp/2010/13/
contents/enacted
National Outcomes
and Standards:
offender/community/16910/Standards/
PracticeGuidance
Community Payback Order
Practice Guidance:
offender/community/16910/
Standards/CPO
s 328 of the Mental Health
(Care and Treatment)
(Scotland) Act 2003.
For a mental health treatment
requirement to be imposed, the
court has to be satisfied
following evidence from
an approved medical
practitioner that:
• the individual suffers from
a mental condition;
• the condition requires and
may be susceptible to
treatment; and
• the condition is not such
as to require compulsory
treatment.
The court must also be
satisfied, following evidence
from the registered medical
practitioner or registered
psychologist who will treat the
individual, that the treatment
is appropriate, and that
arrangements have been made
for the proposed treatment.
The offender’s consent
is required where any
requirement under a
community payback order is
or has a propensity to misuse
any controlled drug;
• the dependency or propensity
requires and may be
susceptible to treatment; and
• arrangements have been or
can be made for the proposed
treatment.
• Alcohol treatment requirement
Where an individual is
considered to be alcohol
dependent, the court may
impose an alcohol treatment
requirement. Before a
court does so, it must be
satisfied that:
• the offender is dependent
on alcohol;
• the dependency requires
and may be susceptible to
treatment;
• arrangements have been made
for the treatment to take place.
Where the offender has
alcohol problems which do
not amount to dependency,
the court may require that
work on alcohol issues be
taken forward under a
programme requirement.
Alternatively a criminal justice
A court can decide to discharge
an order early where an
offender has made highly
positive progress. The court
may vary, revoke or discharge
an order if it is satisfied that it
is in the interests of justice
varied, including when
treatment required under a
mental health treatment
requirement is to be changed.
• Drug treatment requirement
A drug treatment requirement
might be imposed where drug
issues are identified, but are not
the main issue driving the
offending behaviour. (In higher
tariff cases where drug issues
are the main issue driving
offending behaviour, a drug
treatment and testing order
may be more appropriate.)
Before a court may impose a
drug treatment requirement
it must be satisfied that:
• the offender is dependent on
social work case manager
may take forward such
interventions as part of a
supervision requirement or
under the “other activity”
element of an unpaid work or
other activity requirement.
Sentence management
A court may schedule
discretionary periodic review
hearings to check on an
offender’s progress at any
point within the duration
of the order.
An offender would not
usually have legal
representation at a review
hearing. However, if during the
course of the hearing it became
apparent to the court that the
offender had failed to comply
with the order, the hearing
would be suspended. A separate
hearing would then be
scheduled to consider the
alleged failure, at which point
the offender would be entitled
to legal representation.
Following a review hearing,
the court may decide to vary,
discharge or revoke the order.
The offender’s consent is
required before the order
is varied.
Also, the offender, or the
local authority officer
responsible for the offender,
may apply to the court for a
variation of the order, or for
early discharge of an order or
revocation of an order.
A court can decide to
discharge an order early in
circumstances where an
offender has made highly
positive progress. The court may
vary, revoke or discharge an
order only if it is satisfied that it
is in the interests of justice
to do so, having regard to
the circumstances which
have arisen since the order
was imposed.
An offender is entitled to
be legally represented at any
breach hearing. If an offender
breaches a community payback
order, the court has a number
of options. It can vary the order
to impose new or different
requirements. It can decide to
impose a restricted movement
requirement (electronic
monitoring). Ultimately it can
decide to revoke the order and
impose a custodial sentence, or
any other disposal which it
could have used at first instance.
Where the community payback
order was imposed instead of a
fine, or for fine default, the
maximum custodial term
which can be imposed as a
sanction for breach of the order
is 60 days in a justice of the
peace court and three months
in any other court.
The Advice and Assistance
(ABWOR) Regulations 2003
will be amended to ensure that
ABWOR will be available for
these proceedings from
1 February 2011.
Ian Donaldson, Community
Justice Division, Scottish
Government
Feature Diversity
Diverse means
The new professional education and training framework offers a
chance to reassess efforts to achieve diversity within the Scottish
legal profession. Sarah Miller used her award of the Thyne
Scholarship to compare the position here with that in the USA
Feature Diversity
I
n September 2011, a new
framework for legal education
and training will be introduced
in Scotland. One of the
challenges considered relates to
widening access to the profession, in
line with the Law Society of
Scotland’s commitment to diversity
and equal opportunity. The statement
of overarching principles for the new
education and training programme
includes ensuring and promoting
equality and diversity throughout the
education and training framework.
Today it is broadly accepted
that equality and diversity are
fundamental in our society. The Law
Society of Scotland defines equality
as being about creating a fairer
society where everyone can
participate and has the same
opportunity to fulfil their potential.
Diversity is about recognising that
everyone is different in a variety of
visible and non-visible ways. It
concerns creating a culture and
practice that recognise, respect and
value difference, and creating a
workforce who feel valued and
respected and have their potential
fully utilised.
Call to action
Against this background, it is
interesting to consider how diversity
within the Scottish legal profession
compares with that abroad. After
spending a month speaking with
members of the legal community in
the USA, diversity in the legal
profession there appears to be more
prominent than in Scotland, perhaps
partially due to necessity in a
melting pot of ethnic backgrounds.
The US Census Bureau noted
that in 2009, 12.9% of the USA
population were of African-American
origin, 4.6% were of Asian origin and
15.8% of Hispanic or Latino origin.
The Minority Corporate Counsel
Association, founded in 1997 to
advance the hiring, retention and
promotion of diverse attorneys in
legal departments and law firms,
recently reported that of 98 US law
firms surveyed in 2010, 79% have a
Sarah
Miller
Sarah Miller is an
assistant solicitor
with Simpson and
Marwick. She was a
Link student with the
GOALS (Greater
Opportunity of Access
and Learning with
Schools) project while
a student at the
University of Glasgow.
She was awarded the
Thyne Scholarship
2009 by the English
Speaking Union and
spent a month in the
USA researching
diversity in the legal
profession. The views
contained within the
article are her own.
Diversity concerns creating
a workforce who feel valued
and respected and have their
potential fully utilised
law firm diversity professional.
Further, in 2004, the general
counsel of Sara Lee created a “Call
to Action: Diversity in the Legal
Profession”. This document was
circulated to chief legal officers in
corporations to gain their
commitment to diversity in the
profession. It was recognised that the
legal and business interests of their
clients required legal representation
that reflected the diversity of their
employees, customers and
communities. They intended to limit
or end their relationship with firms
whose performance “consistently
evidenced a lack of meaningful
interest in being diverse”. This
statement was signed by many
corporations, including Wal-Mart,
General Motors and Hewlett Packard.
Unclear picture
In times of economic uncertainty in
Scotland, it is important to consider
matters creatively. It is now more
competitive to obtain a traineeship
and the Society’s statistics for
2009 illustrate that the number of
traineeships on offer decreased to 427,
a drop of more than 200 since 2007.
Professor David Wilkins of Harvard
Law School has recently noted that
the turn towards market-based
diversity arguments in the USA is
likely to have important implications
for law firms in other parts of the
world. Closer to home, the Fair Access
to the Professions report (the Milburn
report, July 2009) considered that the
UK economy would not prosper
unless we harness the talent of all
those who are able and aspire to
make a contribution.
Although there may not be the
same extent of ethnic diversity in
Scotland as in the USA, there is
socio-economic disadvantage. The
latest Government
statistics (2008)
show that
17% of the Scottish population
(840,000 people) live in relative lowincome poverty before housing costs.
Studies show that under 12% of those
from the most deprived areas in
Scotland, as defined by the Scottish
Index of Multiple Deprivation, enter
higher education, compared with
53.3% from the least deprived areas.
In addition, where the former group
do proceed to higher education, they
are much more likely to do so at a
college, newer university or the Open
University and in subjects where
graduates tend to earn the least
(Destinations of Leavers from
Scottish Schools 2006-07).
Unfortunately, there is a dearth
of information in relation to
socio-economic background of
members of the Scottish legal
profession. Other than gender, the
Law Society of Scotland does not
collate personal data from new
entrants or the 12,097 solicitors
currently on the roll. Interestingly, in
England & Wales, the Legal Services
Board is currently (until 9 March)
consulting on a proposal that all law
firms and barristers’ chambers will be
required to gather and publish data
about the diversity of their workforce.
The lack of monitoring and
collection of data on the social
background of those applying to and
entering the professions has been
commented on, most notably by the
Panel on Fair Access to the Profession
and in the 2003 research into minority
and social diversity in legal education
in Scotland. Clearly, without the
statistics, it is very difficult to ascertain
accurately the extent of any issues or
whether progress has been made.
Previous research
The 2003 study, however, noted that
law students are disproportionately
drawn from higher socio-economic
groups. The Milburn report, which
applied to the whole of the UK, stated
(p24) that the law remains one of the
most socially exclusive professions.
Top solicitors and barristers are
typically drawn from middle-income
families that are significantly better
off than average (up to £800 per week
more family income than the average,
according to data drawn from Centre
for Market & Public Organisation,
Social Mobility and the Professions
2009). Further, more than 50% of
solicitors and barristers attended
independent schools, compared to
just 7% of the general population.
The Law Society of Scotland has
commissioned several research
papers, including Women in the Legal
Profession in Scotland and Equality and
Diversity in the Legal Profession in
Scotland. Unfortunately, in each study
there was a response rate of less
than one third of members of the
profession. The research also did
not take account of those still at
school or university.
In Equality and Diversity, it was
noted that there was such a small
number of respondents in ethnic
groups that it was “almost impossible
to draw robust conclusions” (p5).
However, it was considered that
incidents of discrimination should
concern the profession and there
should be clear guidelines covering
the recruitment of trainees and
ongoing career development (p9).
It was further suggested that it may
be appropriate for the Society to have
an auditing role.
In relation to attitudes and
experiences, 52% of respondents
agreed that social class matters, and
51% agreed that where you go to
school matters (p30). Indeed, the
lower the age of the respondent, the
more likely they are to agree that
social class matters. Respondents with
parents in the legal profession were
less likely to indicate that they had
experienced discrimination in
obtaining a traineeship (p39).
Overcoming barriers
In speaking with various lawyers and
professionals in different cities and
organisations in the USA, the barrier
of socio-economic circumstances
was often cited. It is necessary to
engage with pupils from an early
stage in order that the “pipeline”
be maintained from school through
to a career in the legal profession.
This facilitates the widening of the
pool of entrants.
Potential entrants may also face
financial constraints. Several
respondents in the USA noted the
availability of scholarships, which
may be based on educational
attainment or financial need.
However, obtaining a scholarship is
very competitive and criteria may
differ according to the nature of the
award. One respondent was
particularly supportive of
scholarships, noting that they can
be invaluable for some students.
Nevertheless, a great number of
law students are forced to take
substantial loans to fund an
education at law school in the USA.
While there are attempts by various
groups to lessen the inequalities
within society in Scotland, there
seems to be a lack of a coherent and
structured approach. Widening
participation schemes within schools
and universities is very important,
and schemes such as the Pathways to
the Profession at the University of
Edinburgh have been recognised as
leading in their field (Sutton Trust
comment). The recent introduction of
the Solicitor Links for Undergraduate
Guidance (SLUG) scheme at
Edinburgh is an important step
forward to introduce students to
law firms through a regular work
experience programme.
Implementation of links between
students and law firms is crucial for
students to begin to network, and
understand our profession. This may
assist in creating links for those with
no knowledge or connection to the
legal community in Scotland.
Sixteen of the 17 respondents in
the USA indicated that they
considered mentoring to be very
useful. It was highlighted that
mentoring is key to progressing
diversity and ensuring employees
are supported and integrated into
the team. The one respondent who
indicated that mentoring may not be
as useful based his opinion on a
“forced” form of mentoring and
was of the view that an ongoing
working relationship is more
effective. All respondents noted
that their firms had summer
internship programmes.
All indicated also that networks
were very important, both for
entrants to the profession and
more established lawyers.
Networks may be between
different offices in the same firm,
between different firms, minority
bar associations and other local
networking organisations, for
example the local chamber of
commerce.
Practical approach
Accountability within the
organisation was noted by most
respondents as being crucial. This
included evaluating diversity
schemes and ensuring that the
person charged with overall
responsibility for diversity has
credibility within the organisation
and treats diversity as a core value.
One respondent from a large law
firm indicated that a compulsory part
of the annual review for their partners
was involvement and commitment to
diversity. Another respondent
indicated it was necessary to facilitate
the process for people to become
involved in diversity programmes. A
forced or abstract approach to
diversity was ineffective.
All respondents indicated that
diversity was very important for
business development, as diversity
evolved from being a “moral good” to
also being good for business. Clients
often expected the firms to have a
diversity policy in place and would
check that such policies were
implemented in everyday practice.
One respondent indicated that in
having a diverse workforce, you have
a wide sector of views, allowing a
firm, and therefore its clients, to
consider issues in innovative ways.
The year 2011 is a time of change in
legal education and training. We can
utilise this opportunity to achieve
greater diversity in the profession
with a system of coherent projects
and opportunities for students and
new entrants. A monitoring system
for new entrants is crucial so that
we may have appropriate data
to allow us to evaluate the
makeup of the profession,
and focus on areas which
need attention.
It will take a dedicated
and proactive approach to succeed
in transforming diversity policy into
practice. The implementation needs
to be ongoing: in the words of
Professor David Wilkins, diversity
is a journey and not a trip.
Feature LawWorks Scotland
Good and better
Pro bono legal work in Scotland is moving up a level with the arrival of
LawWorks Scotland. Colin Hulme, one of the board of trustees, explains
how it aims to dovetail with and enhance work already being done
1. The idea
LawWorks Scotland has been
established to co-ordinate, develop
and encourage the provision of pro
bono legal services in Scotland.
Initially these services will be
restricted to provision of advice and
will not include representation.
LawWorks Scotland (LWS) will
operate as an independent Scottishbased charity, but is acting with the
support of LawWorks, the well
established London-based
organisation (www.lawworks.org.uk).
Almost every major law firm in
England is a member of LawWorks
and it is our intention to achieve an
equivalent position in Scotland.
The LawWorks model is to act as a
clearing house for lawyers wishing to
provide pro bono legal services. They
will register with us and we will then
facilitate their attendance at advice
clinics run by frontline advice agencies
such as Citizens Advice Scotland.
All subsidiary aspects such as
compliance with “know your client”
laws, training, engagement terms and
insurance are taken care of.
To operate we need two things:
lawyers providing their time at no
charge; and funding. This paper is
intended for law firms and other
organisations that are in a position
to provide either or both.
My own involvement in this area
dates back to university when, for a
period, I worked as a Citizens Advice
Bureau adviser. There is no doubt I
gained a great deal of experience in
handling clients in an advisory context
and found that experience invaluable. I
would like to think that others can see
the benefit in getting involved in this
way and ensuring that those in our
community who are most in need of
legal advice, but who are unable to pay
for it, are able to receive that advice.
2. Our activities
I am delighted to say that reaction
so far has been tremendously
supportive. I have seen great
enthusiasm, particularly but not
solely from younger lawyers who
came into the law wanting to do
some good but who may have found
the reality of working in private
practice or in-house not quite living
up to their idealistic vision.
What has also been very
encouraging is to hear that there is
so much pro bono work already
going on and at LWS we readily
acknowledge that. The idea of our
organisation is not to seek to replace
or hinder that but, rather, to act as a
co-ordinating body to ensure that
those who wish to provide pro bono
legal advice can be channelled in the
right direction towards those most
needing that advice.
The initial activities will be:
establishing a register of lawyers
prepared to provide pro bono
services
matching lawyers prepared to
provide pro bono services with
established advice centres such as
those run by Citizens Advice
Scotland, law centres and
university advice clinics
providing training to ensure that
lawyers without relevant expertise
can provide the required services
helping to establish pro bono clinics
in areas where none already exist
and, where necessary, improving
and expanding existing services.
We plan to develop our operations
in these ways:
encouraging all law schools to
establish law clinics and assisting
them in doing so
organising regular conferences and
symposia to discuss issues relating to
the provision of pro bono services
fostering the spirit of pro bono by
having award ceremonies to reward
pro bono activities
providing brokerage services to
community groups and small
charities in need of legal assistance
matching lawyers and others
Colin
Hulme
Colin Hulme is a
partner in Burness LLP
prepared to provide free mediation
services
developing detailed online resources
to support pro bono services in
Scotland. We have secured the
following domain names:
www.lawworksscotland.org.uk,
www.lawworksscotland.org and
www.lawworksscotland.co.uk
negotiating CPD hours for free
legal advice and certifying such for
solicitors’ CPD records.
3. How we will work
At LWS we are very conscious that pro
bono, which is very active in many
similar jurisdictions, cannot be a
substitute for civil legal aid. We see
it as being complimentary to an
effective civil legal aid system.
LWS aims to provide advice only
for those who are unable to pay for
legal advice, rather than those who
choose not to.
In this way, I would not be surprised
if many people who see a LWS adviser
are then advised to make contact
with a solicitor providing civil legal
aid. It is important to note that LWS
advisers will only be providing advice
at clinics, and not representation,
which again underlines the
importance of civil legal aid.
In order to ensure that pro bono
advice and assistance meets normal
professional standards, we require:
Training for advisers. All
volunteers should be able to
provide adequate advice in the
likely areas of housing, welfare,
employment, etc. Citizens Advice,
Glasgow Housing Association inhouse lawyers and the University of
Strathclyde Law Clinic, among
others, may be able to assist here.
Insurance cover. All advice given at
clinics will be provided under the
terms of the organising “frontline
agency” (FLA): Citizens Advice,
university law clinic etc. However, it
may be necessary to arrange residual
insurance to cover unexpected gaps.
This may be done through Advice
increasing importance is the need
to be able to demonstrate CSR
activity when tendering for legal
services contracts.
We have discussed with the Lord
Advocate and Scottish Government
lawyers the inclusion of a question
relating to the provision of pro
bono legal services in Government
tenders. The Lord Advocate is a great
proponent of pro bono services and
she has been a supporter of LWS.
UK, which insures advice agencies.
Marsh, the professional indemnity
insurance broker, is also willing to
assist, for a fee.
Standard setting. Standards for the
provision of service will be put in
place for all LWS clinics.
Protocol. A protocol will be drawn
up for those FLAs who would like
to use LWS, stating the type of
services to be offered and to whom
they are offered. It is likely that
this will be based on the existing
LawWorks protocol.
Terms of engagement between
adviser and client will require
to be drawn up.
Money laundering requirements
will be dealt with by the FLAs.
We are confident that
offering participation in
LawWorks Scotland will
be a draw for prospective
law student graduates
4. Why get involved?
Corporate social responsibility
Participation in LWS will be a major
boost to your existing CSR
programme. If you do not already
have an effective CSR programme,
provision of lawyer hours to LWS
can meet that need.
Almost all law firms accept the
value of operating effective CSR
programmes. Of course, CSR is our
opportunity to put something back
into the community and there are
many indirect employee benefits to
be enjoyed through doing so. Of
LawWorks Scotland: our organisation
LWS is a registered charity (no
SC041601). It will operate
independently of LawWorks, but with
their full support and permission.
It will be under the control of a board
of trustees, made up of representatives
of the various sectors of the legal
profession, the universities, the Law
Society of Scotland and advice
agencies. The board will also be
responsible for promoting its activities
to the profession and universities more
broadly in order to sign up members
and to bring in funds.
The board’s current membership is
Ian Moffett, consultant, Anderson
Strathern (chair); Professor Donald
Nicolson, University of Strathclyde;
Hugh Donald, ex-Shepherd and
Wedderburn; Jane McLeod, Scottish
Government; Paul White, Scottish
Council for Voluntary Organisations;
Emma Anstead, Proactive Employment
Lawyers; and Colin Hulme, Burness LLP.
Day-to-day running of LawWorks
Scotland will operate from
administrative premises provided free of
charge by the Law Society of Scotland.
Initially, it is employing one part-time
administrator, responsible for
co-ordinating activities, advertising LWS
services, maintaining a database, a
website and other online resources,
liaising with FLAs and universities,
pursuing funding applications, and
organising training, insurance, standard
setting, letters of engagement etc.
The cost of annual membership will
be based on the number of Scottishbased fee earners working in a firm.
The fees approximately equate to
£15 per fee earner.
The bands of fees are as follows:
No of fee earners Membership fee
0-10
£150
11-25
£300
26-50
£550
51-75
£950
76-100
£1,250
101-125
£1,650
126-175
£2,250
176-250
£3,000
250 plus
£3,500
Training and experience
Acting as a LWS adviser offers lawyers
the opportunity to develop their
people skills with hands-on
experience. While we will provide
formal subject-specific training in
specialist areas, working as a LWS
adviser will offer hands-on, one-toone adviser experience that some
junior lawyers do not otherwise gain.
This training and personal
development can be gained
without reputational risk to
your organisation and with no
expenditure of management time.
Working as a LWS adviser also
offers opportunities that lawyers may
not have in their work. For example, a
lawyer in a significant corporate
practice may get little opportunity to
advise clients directly, and working
with us offers that opportunity.
At this stage, we do not intend to
impose a minimum commitment of
lawyer hours for participation.
Recruitment
We are confident that offering
participation in LWS will be a draw
for prospective law student
graduates, many of whom are
already working in the growing
number of university law clinics
(Strathclyde, Edinburgh, Aberdeen
and West of Scotland).
LWS will work closely with
these clinics and may provide
advisers through their existing
structures. In this way a closer
connection with the universities and
law students can be achieved.
What we need to achieve is the
position that has been gained by
LawWorks in England, which is that
it becomes the norm to be signed up
to LWS, and if a firm or organisation
is not a member, that the question
might be asked, why not?
LWS has been lobbying to
introduce questions relating to the
provision of pro bono legal advice
as part of public sector tenders. I
personally consider that if that could
be achieved, that single step would
turbocharge the launch of LWS.
Feature CABx
Help
where
it’s
needed
The arrival of LawWorks should
serve as a reminder of many existing
projects that receive pro bono solicitor
support, not least Citizens Advice –
a network still in need of financial
at least as much as practical
help, as Peter Nicholson
discovered
T
he publicity surrounding the
LawWorks pro bono launch
should not distract us from
the need of continued support
for projects that have already been
established for many years. Nor, of
course, would LawWorks wish it to
be otherwise.
In these times of financial stringency,
no such organisation can take its
continued existence into the next
financial year for granted – even those
with a claim to be the best known.
Citizens Advice Scotland (CAS) may
have already celebrated its 70th birthday,
but as I discovered on a recent visit, as at
early December its Edinburgh operation
was still waiting to hear what will be
forthcoming from its main funders after
this March.
“To many people that will be quite
surprising,” observes Craig Cathcart, a
trustee and director of the local bureau,
“because people think Citizens Advice
has always been there: it’s been a feature
of local communities and high streets
since the Second World War. There’s
been an assumption that we’re funded
by some pot of money and that’s not the
case. We’ve benefited from tremendous
generosity from some organisations and
individuals, but it’s been tough and it
will continue to be tough. It really is a
question of survival for ourselves and for
many other bureaux around the UK.”
CAS’s offices have to be considered
individually, as each bureau (or a cluster
of local bureaux, as in Edinburgh) is an
independent charitable body, with its
own funding arrangements, operating
under the umbrella of CAS. Although
most are funded predominantly by local
authorities, in the capital that amounts
to about 40% of core funding, the
balance coming from businesses, trusts
and foundations, and project
management fees.
The national body’s role is essentially
to provide the quality assurance to allow
the local bureaux to operate under the
CAS banner, through training support
and a three-yearly audit of advice
provision to maintain quality.
Bellwether body
Funding or no, the various CABx are
unlikely to run out of things to do. “I see
us very much as a weather vane for
what’s going on in society,” says
Cathcart. “The recession and its
consequences have brought an awful lot
more people to our doors. We’ve had a
25% increase in business since the start
of the credit crunch, and the profile of
those coming to see us and the nature of
their problems reflect the social and
economic problems that people are
facing outside. We’ve seen a vast increase
A law graduate’s perspective
Leigh Harris, a law graduate seeking a traineeship,
describes her work as a volunteer and the benefits
she has derived from it
I graduated LLB (Honours)
from the University of
Strathclyde in 2008 on the
graduate entrance course, and
from the University of Stirling
in 2009 with the Diploma in
Legal Practice. I had been
unable to secure a legal
traineeship on graduation and
therefore applied to work at
Citizens Advice. I was aware of
the type of work that Citizens
Advice did and I knew I would
gain good practical experience
and use what academic
knowledge I had. I contacted
Citizens Advice online at
www.cas.org.uk where I
expressed my interest to work
as a generalist adviser.
I work in two bureaux on a
full time and voluntary basis,
working one day in Denny &
Dunipace bureau where my
main role is a generalist
adviser, and the other four at
Clackmannanshire bureau
where I am the heritable
court representative, assisting
clients with rent arrears,
and a generalist adviser and
benefit appeals tribunal
representative.
I also work as a bureau tutor
and trainee adviser mentor
across both bureaux, and am
a lay representative on the
We don’t think
we’ve yet seen
the full extent
of job losses in
Edinburgh,
either in the
public sector
or the financial
services sector
Citizens Advice Scotland Legal
Services Group. This is a group
set up to look at the legal
services provided by CABx and
discuss changes in legislation,
barriers and access to justice
that our clients face, and court
and tribunal representation
among other current and
relevant topics. The Group is
chaired by Professor Alan
Paterson of Strathclyde
University, and includes
members of various
professional bodies (SLAB,
Law Society of Scotland,
Equality and Human Rights
Commission, Faculty of
Advocates, Consumer Focus),
as well as CAB representatives.
Learning in the role
The majority of clients at
Clackmannanshire bureau who
require assistance with their
rent arrears, present once they
have been served with a
summary cause summons,
mostly by the local council but
also by social landlords. My
role is to establish with the
client why they got into rent
arrears, whether there are any
benefits they should be
claiming, including possible
backdates to reduce their
arrears, whether the client has
in people seeking financial and debt
advice, but also an increase in people
seeking employment advice, for
example, as employment has become
more precarious. So we very much
reflect what’s going on out there and
that’s seen very volubly in our statistics.”
Moira Tasker, his chief executive, adds:
“We don’t think we’ve yet seen the full
extent of job losses in Edinburgh, either
in the public sector or the financial
services sector. There’s also been a
change in the demographic profile of
our clients, so we’re seeing quite a lot of
sole traders and small business owners
who perhaps are ancillary to large
companies; and quite a few
professionals – architects, developers,
anyone connected with industries that
any children who live in the
property, whether they have
any disabilities, and what their
financial position is. I represent
clients who are unable to
represent themselves. I also
work very closely with the local
council’s legal services team
and the local solicitors.
Building excellent working
relationships is vital to allow
negotiations and joint motions
to be made.
I am also interested in
employment law and deal with
many enquiries relating to
dismissal (wrongful and
constructive), discrimination,
illegal deductions from wages,
and holiday and pay
entitlements.
As a law graduate seeking
a legal traineeship, Citizens
Advice has provided me with
a firm base for learning,
progressing, networking,
helping clients, meeting new
people and building personal
and professional relationships.
I have attended many training
courses, including
employment rights, consumer
issues and immigration.
The only regret I have about
Citizens Advice is that I did not
volunteer earlier!
have been affected by the recession.”
On the spot
In making itself available to those in
need, Citizens Advice does not confine
itself to its own offices. The Edinburgh
branch has five of these but a further 15
outreach projects run in conjunction
with various organisations, five of them
housing associations (for money advice
to tenants), and eight in GP surgeries
around Edinburgh.
Tasker explains: “It was found that for
the NHS it can save money in healthcare
terms if people can address their stress
levels and their problems. And if
somebody is diagnosed with a serious
Feature CABx
illness, that might have an impact not
just on their employment but their
family lives, their housing, anything.
They’ve been very successful projects;
they’ve been running for a long time. We
also have referral mechanisms with
groups such as the Ethnic Minorities
Law Centre – we deal with the more
straightforward immigration advice, and
we can refer the more complex cases on
to them.”
Solicitors may not appreciate that the
in-court adviser project and the in-court
mediation project, based in the sheriff
court, are also operated by CAS, working
with the Scottish Legal Aid Board.
“They’re very busy and on the measures
we’ve put in, we think very successful,”
says Cathcart. “The mediation service for
example takes people from being at
loggerheads and has a resolution rate
of 90%.”
Both Tasker and Cathcart believe that
ignorance and misperceptions continue
to put barriers between many people
and their rights, quite apart from the
financial obstacles. “We have one of the
strongest brands in the voluntary sector:
people know the CAB is there to offer
advice,” Tasker comments. “We have
more clients than we could possibly
help, but I think the concern is wider
education among the public as to what
a lawyer can do for you. There is still a
perception that this will be very costly,
and perhaps alternative ways, even such
things as the in-court mediation service
can save all parties a lot of money, so I
think that while we’re very visible, pro
bono legal work in Scotland isn’t as
visible as it could be.”
Cathcart believes that despite the
service’s fairly good network in
Edinburgh, there remains a vast
untapped need for advice. “We’ve got
some demographic analysis of the users
of our bureaux, and the pattern is very
much that it’s people who are based in
those areas who use a local bureau. Now
either that’s because we are sourced by
Providence at the areas of greatest need,
or just because wherever you put a CAB
there is a huge unmet need for advice
and we then meet that. One of the
projects we’re hoping to put in place in
the near future is to do some research
which would find out whether there are
similar areas of unmet demand in areas
of the community where we don’t have
bureaux. We suspect we could infer an
answer from what we know so far, but
we want to really get the science on that.”
Solicitor support
As regards current levels of support from
the legal profession, the Edinburgh
“Tremendously grateful” for
support: Craig Cathcart
“It really is a question of
survival for ourselves and
for many other bureaux”
bureaux are well placed for practical
help. Local solicitors have been
providing advice support for over 30
years, with more than 30 volunteers
currently staffing four pro bono legal
advice clinics. “They operate by internal
referral,” Tasker explains. “If we have a
client coming to us with a problem and
they’ve already seen a generalist adviser,
and it’s judged that we need a solicitor
here, then they get referred for an
appointment at our pro bono clinic. I
asked some of the solicitors recently
how they felt their input helped, and as
well as getting phenomenal results for
clients, they felt that their presence as a
solicitor gave their clients confidence,
that they were right to pursue the matter.
Often it wasn’t the solicitor doing so
much work, it was really empowering
the client, and we would say that’s the
ethos of Citizens Advice – it’s not to
solve people’s problems for them, it’s to
empower them so they’re aware of their
rights and their responsibilities, to help
them solve their problems. Our pro
bono legal clinics are an important part
of that.”
While “tremendously grateful” for the
support received, Cathcart adds that in
an ideal world the next step would be
for the solicitors “to adopt more of a sort
of casework basis: rather than making
one or two interventions in a case, to see
it through to a conclusion including if
necessary pro bono appearances in
court or at a tribunal”. That would
provide more complete support for the
harder cases that are not resolved by
correspondence.
What, then, would the CABx most
like by way of additional support from
the profession – financial support, or
more volunteer assistance, or both?
“Financial support is the biggie, but all
of the above,” Tasker replies. “We always
welcome approaches by law firms, they
can speak to us about volunteering
opportunities, but we need cash too to
be here, to offer these. We’re well
resourced in terms of support from
solicitors but there are always areas,
particularly certain specialist areas where
we need more help, such as
employment, at the moment.”
But even conveyancers have a role to
play: Cathcart explains that advice is
quite regularly sought, certainly in
Edinburgh, in relation to burdens or
other title problems, or neighbour
disputes.
Complementary programmes
One area where CAS can offer benefits
in return is as a means for newer
solicitors – or indeed those still seeking
to qualify: see panel on previous page
for an example – to come and build up
client experience. “That can be
formalised as part of their CPD record,”
says Tasker, “and I think the wider CAB
service is looking at formalising that
with vocational qualifications as well.”
Cathcart adds: “We hope to bring
forward a programme of specialised
induction for solicitor volunteers so that
everybody has a better perspective of the
wider organisation and everyone
receives the same level of support, as our
generalist advisers do as well.”
So what of the LawWorks move into
Scotland – how do they see it impacting?
“In Edinburgh, we’re fairly well covered,
but in other parts of Scotland there’s a
real need for more pro bono work,”
Tasker replies. “Absolutely,” Cathcart
agrees. “Because we’ve got wonderful
historical links with the legal profession,
we have established on the ground a
very similar service to what the
LawWorks model is as I understand it,
and that’s fantastic. But you don’t have
to go too far beyond Edinburgh to find
there are no similar things. Because we’re
the capital and have the supreme courts
here and so on, we have more than our
fair share of lawyers, and other parts of
the country aren’t as fortunate.”
CONTACTS:
Edinburgh website:
www.citizensadviceedinburgh.org.uk
Across Scotland, the CAS website www.cas.org.uk
acts as a portal.
Professional news Appreciation
Elaine Tyre, the University of Edinburgh’s first Director of
Professional Legal Studies, made an immense contribution
to legal education in the university and more widely
Elaine Tyre
The tragically early death of Elaine
Tyre has caused immense sadness
amongst her many friends, colleagues
and former students in the legal
community in Scotland and beyond.
The first thoughts of everyone are with
her family, to whom she meant so
much and of whom she was so proud.
Lady Tyre was appointed as the
University of Edinburgh’s first Director
of Professional Legal Studies in May
2010. A double graduate of the
university, initially in history and
politics and then in law, she went on to
qualify as a solicitor with Shepherd and
Wedderburn. Elaine first joined the
staff of the then Law Faculty in 1980 as
a part-time tutor. She taught at both
LLB and Diploma in Legal Practice
level for many years, before being
appointed as deputy director of the
Legal Practice Unit in 2002. Elaine’s
promotion to the post which she held
at the time of her death rightly
rewarded the immense contribution
which she had made to legal education
at the university and more widely.
Elaine organised and taught on
several Diploma courses. She acted in
a formal capacity as director of
studies for many students and in an
informal capacity for countless
others. She coached the student team
each year in the Scottish Client
Counselling Competition. When
Edinburgh won it on two occasions
she accompanied the team to the
World Finals in Australia and Hawaii.
She co-ordinated the development of
the Professional Competence Course
at Edinburgh and directed the
delivery of both its core and elective
modules. She conceived the idea of
the Law School offering a part-time
Diploma over two years with evening
classes, which began to run in 2009.
Elaine Tyre
1956-2010
She also sat on numerous Law Society
of Scotland committees and was a key
figure in the ongoing reform of legal
education in Scotland.
Always full of new ideas, one of
Elaine’s greatest achievements was the
establishment of the university’s Free
Legal Advice Centre in 2007. It
enables Diploma students to serve the
wider community by putting their
legal knowledge into practice with
real life clients and problems. Elaine
invested innumerable hours working
on this project and it put into practice
her ethos of seeking to help others.
It might be wondered in amongst
all this work whether Elaine had time
to socialise. Yet she was arguably the
most sociable individual that one
would ever encounter. She invariably
attended Diploma parties, receptions
and balls. She took a special interest
in the annual group of Eurolawyers,
inviting them to a barbecue at her
home in East Lothian. In 2009 she
had another inspirational idea: to
start a Law School Choir. This would
enable more social interaction
between staff and students. Its first
ever concert in March 2010 raised
several hundred pounds in donations
for the Free Legal Advice Centre.
Perhaps Elaine’s defining
characteristic was her capacity to love.
She loved her family, her friends, her
colleagues and her students. And they
in turn loved her. She drew great
support from her husband Colin,
who became a judge in May last year,
and their children Kirsty, Catriona
and Ewan. The great affection of her
colleagues and students can be seen
from the numerous poignant tributes
on the Edinburgh Law School
website. Her death has left a large gap
in many people’s lives. Yet she has a
tangible and enduring legacy in the
Edinburgh Law School’s part-time
Diploma, Free Legal Advice Centre
and choir, to name only a few. And
there are countless happy memories.
She was a remarkable individual and
it was a privilege to work with her so
closely and to be her friend.
Dr Andrew Steven, Senior Lecturer
Society role
Elaine Tyre, who died on 12 December 2010, had been a member of the
Law Society of Scotland’s Education and Training Committee since
September 2004.
Committee convener Christine McLintock said: “Elaine will be greatly
missed by all who knew her. She was a dedicated member of the
committee with a genuine interest in the future of education and training.
She willingly gave her time and her ideas, not only on the main committee
but also as a member of various working parties. Her professionalism,
commitment and common sense were greatly valued, but it was the
manner in which she combined these qualities with her vitality and sense of
fun that made her such a pleasure to work with. My thoughts are with her
family in their loss.”
Professional news Society
News
in brief
Above: Peter Nicholson receives his award from Peter Martin of category sponsors Menzies
Distribution and event host Craig Hill
Win for Journal
editor at 2010
PPA awards
The title “Editor of the Year – Business
& Professional” was awarded to
Journal editor Peter Nicholson at the
2010 Scottish Magazine Awards,
announced on 1 December.
The annual awards, run by
Periodical Publishers Association
Scotland, are the “Oscars” of the
Scottish magazine publishing
industry. Sixteen categories covering
business, consumer, staff and
member magazines as well as best
online presence attracted 160 entries
from all over the country.
Ten judges holding leading
positions in publishing selected Peter
Nicholson for the prize ahead of the
other finalists, Mandy Rhodes of
Holyrood magazine (who took the
Columnist of the Year award),
Alasdair Fletcher of Scottish Farmer,
Antony Begley of Scottish Local
Retailer, and Daniel Lambie of
Teaching Scotland, which like the
Journal is produced by Connect
Communications.
The success follows the double win
for the Journal in 2006 when it
scooped Best Member Magazine and
Best Redesign. This year it was also
shortlisted for Best Online Presence,
for the Forum page opened to
promote the ABS debate in the spring.
Peter Nicholson said he was
surprised and delighted to have won.
“This has been a very challenging year
for many reasons, and I am especially
pleased that the judges have
recognised that we have attempted
to take a professional approach to
every issue that has faced solicitors
in that time.”
Sending her congratulations,
Lorna Jack, Chief Executive of the
Law Society of Scotland, said: “Peter
thoroughly deserves this award,
which recognises the considerable
work he has put into editing the
Journal over the course of the last 12
months. This has been an important
year for the Scottish solicitor
profession, with big changes
following the Legal Services Act and
the Cadder Supreme Court ruling,
and keeping the Society’s 10,500
members up to date with these and
other issues has been incredibly
important.
“We know the Journal magazine
and Journal online are both well read
and valued by our members. This
award underlines the immense
contribution that Peter’s journalistic
integrity and high professional
standards continue to make to the
Journal’s success.”
March date
for AGM
The Society’s Annual
General Meeting 2011
will be held on Friday
25 March, in the
Marriott Hotel, 500
Argyle Street,
Glasgow, beginning at
10am. The agenda for
the meeting will be
set at the meeting of
the Society’s Council
on 28 January.
Any requisition for
the AGM under article
13(3) of the
constitution should be
received by the
Secretary not less than
42 days before the
meeting, which is by
11 February 2011.
Any questions on
the arrangements for
the AGM can be
addressed to the
Society’s Registrar
David Cullen
(e: davidcullen@
lawscot.org.uk).
Dalling joins
Council
Kenneth Dalling of
Dalling Solicitors,
Stirling, a sole
practitioner and a
current member of
the Society’s legal aid
negotiating team, is
the new Council
member for the
Stirling, Falkirk and
Alloa constituency,
having been elected
unopposed in the
recent by-election.
His contact details
are: Dalling Solicitors,
83 Barnton Street,
Stirling FK8 1HU (LP 5
Stirling; t: 01786
448111).
Protocol
fees rise
Fees for claims settled under the
protocols agreed between the Society
and insurers have been increased by
3.5% in line with the Consumer Price
Index.
Under the Injury and Disease
Protocols, the instruction fee is
increased from £358 to £370 for
claims up to £1,500, and from £783
to £810 for claims over £1,500. The
instruction fee under the Professional
Negligence Protocol rises from
£1,006 to £1,041.
There will be no increase to the
completion fee in any of the
protocols. The increased instruction
fees will apply to claims settled after 1
January 2011 and which have been
dealt with entirely under the
relevant protocol.
Edinburgh
PI sheriff
appointed
The Sheriff Principal of Lothian &
Borders has appointed Sheriff Mhairi
M Stephen to oversee the handling of
personal injury cases under the
procedural rules introduced in 2009.
Proofs will be heard either by Sheriff
Stephen or by one of a small number
of sheriffs with experience in this field.
A Personal Injury User Group
(PIUG) has also been established,
chaired by Sheriff Stephen. Other
members of the group are: Peter
Anderson, Simpson & Marwick;
Michael Corrigan, PI clerk and
secretary to the PIUG; Peter Crooks,
Bonnar & Co; Gemma Gow, PI clerk;
Ian Leitch, HBM Sayers; Kim Leslie,
Digby Brown; Sheriff Kathrine Mackie;
Robert Milligan QC; the Sheriff Clerk
Edinburgh/Head of Civil; and
Catriona Whyte, Scottish Legal
Aid Board.
Guidance notes, Minutes of PIUG
meetings and forms to be used notifying
the court of settlement can be
found on the court website at
www.scotcourts.gov.uk/
location/edinburghsheriffcourt/
personalinjuryactions.asp
The personal injury clerk can be contacted
by email at edinburghpersonalinjury@
scotcourts.gov.uk (t: 0131 247 2848).
Ritchie and Lafferty elected
office bearers for 2011-12
Cammy Ritchie and Austin
Lafferty will take up office at the
end of May as the Society’s
President and Vice President for
2011-12.
Following a ballot of members
of Council, former procurator
fiscal Cammy Ritchie, the current
Vice President, was returned
unopposed as President, while
Glasgow high street solicitor
Austin Lafferty won a three-way
contest for Vice President,
defeating Dumbarton member
David Newton and Hamilton &
Lanark’s Oliver Adair.
In the first round of an election
conducted using the single
transferable vote, Lafferty and
Newton tied for first place with
17 first preference votes, with
Adair eliminated on six. When his
votes were redistributed, Lafferty
won by 20 votes to 18.
Well known as a legal
commentator on television and in
the press, Austin Lafferty has
served on Council as a member
for Glasgow since 2006.
After the result he said: “I am
delighted to have been elected
and would like to thank my
colleagues for putting their trust
in me. The Law Society of
Scotland is a proud and respected
organisation and it will be a huge
honour to serve as Vice
President.”
Paying tribute to David Newton
and Oliver Adair for their work for
the Society, he added: “The last
year has been difficult for the
profession and a year which has
shown divergent views on the
role of the Society as both a
representative and regulatory
body. However, I believe it is time
to move on and for the
profession to come together, not
least so we can be united in
tackling the significant issues that
face the profession over the
coming months, including
significant cuts to the legal aid
budget and the implementation
of the Legal Services Act.”
Extending his congratulations,
current President Jamie Millar
Student advice,
Aberdeen style
Students Kate Longmuir, Ryan Whelan, Sophie Hanlon
Aberdeen University law students have launched their
own advice clinic for members of the public, offering
free advice on housing, employment and consumer law.
Over 120 students are supporting the scheme, which
is backed up by qualified solicitors. The students claim
their scheme is the first in Scotland to be founded,
operated and led by students, though at least three other
clinics are in place offering advice given by students.
The project’s management board includes Court of
Session judges Lord Woolman and Lady Dorrian, the
university’s principal Ian Diamond, and Gary Allan QC
and David Parratt of the Faculty of Advocates, and is
chaired by the head of the school of law, Professor
Margaret Ross.
Ryan Whelan, founder and director of the project, said
there was a lack of legal advice available to many
communities in the north east. He hoped that the clinic
would be able to increase access to justice for such people.
Professor Ross said the board had been “most
impressed by the initiative of the project leaders in
setting up the clinic and in ensuring that it has a very
strong foundation of training and professional support”.
said: “As a high street practitioner,
Austin brings a wealth of
experience across a broad
spectrum of areas. He is well
known as an effective
communicator and someone
who cares passionately about the
solicitor profession. In Austin
Lafferty and new President
Cammy Ritchie, we will have a
strong and effective team leading
the Law Society of Scotland.”
Specialist accreditation
Construction
MARK J KIRKE, Dundas & Wilson CS LLP
(accredited 1 December 2010).
Re-accredited: NEIL F SMITH, NF Smith
(accredited 11 November 2005).
Employment
DOUGLAS JAAP, Digby Brown LLP (accredited
29 October 2010); LYNNE A MARR, Brodies
LLP (accredited 1 November 2010).
Family
Re-accredited: RHONA A ADAMS, Morton
Fraser LLP (accredited 20 September 2000);
CAROLYN MACBRIDE, HBJ Gateley Wareing
(accredited 12 December 1995).
Insolvency
Re-accredited: GREGOR K MURRAY,
RSB Macdonald (accredited 27 June 1997).
Intellectual property
Re-accredited: GRANT S CAMPBELL, Brodies
LLP (accredited 29 July 2005).
Liquor licensing
Re-accredited: JANET HOOD, Janet Hood
Consulting (accredited 27 June 1995).
Private client tax
MARTIN S CAMPBELL, Anderson Strathern
(accredited 30 November 2010).
Trusts
Re-accredited: JACQUELINE LESLIE, Bird
Semple (accredited 25 October 2005); SCOTT
WILLIAMSON, Blackadders (accredited 31
August 2005).
Professional news Society
Obituaries
JOHN ALEXANDER McGHEE, Stirling
On 13 November 2010, John Alexander McGhee, formerly partner of the
firm Mailers, Stirling.
AGE: 53
ADMITTED: 1981
Forum discusses
EU contract law
ARCHIBALD GARDEN WERNHAM, Wishaw
On 11 December 2010, Archibald Garden Wernham, sole practitioner,
Wishaw.
AGE: 64
ADMITTED: 1971
ELAINE PATRICIA TYRE, Dunbar
On 12 December 2010, Elaine Patricia Tyre, formerly employee of the
firm Barlas & Sharpe, Dunbar.
AGE: 54
ADMITTED: 1982
E&T roadshows
focus on reform
The Society will be running a series of
free roadshows around Scotland in
late January and early February,
focusing on the upcoming changes to
legal education and training
(including CPD) and the Registered
Paralegal Scheme. The venues are
currently being confirmed but the
Society intends to run the events on
20 January (Aberdeen), 27 January
(Edinburgh), 3 February (Inverness),
10 February (Glasgow), 17 February
(Dundee) and 22 February
(Dumfries).
Further information will be
available in the New Year and put on
the Society’s website. The roadshows
are the start of a number of events
which the Society intends to host
throughout the year, including “Train
the Trainer” events in the summer.
If your firm, organisation or local
Faculty would like a meeting with
representatives of the Society about
the changes to legal education and
training will affect your firm, please
contact Rob Marrs at
[email protected]
Roadshow dates are in January/February
News
in brief
Family law
training
programme
CALM and SCFLG, the
mediation and
collaborative law
groups, have
announced their
training programme for
2011. Events up to
June are: 17 March,
Theory and Practice of
Effective Negotiation
(Edinburgh); 28 April,
Adult Dynamics and
Reaction to Loss
(Glasgow); 26 May,
Advanced Collaborative
Practice (Glasgow); 8-9
June, Collaborative
Practice (Edinburgh).
For further
information contact
the training coordinator, Samantha
McGinlay at Mowat
Hall Dick Solicitors,
63 Carlton Place,
Glasgow G5 9TW
(LP 19, Glasgow 2;
t: 0141 420 2430;
e: management@
mhdlaw.co.uk).
On 16 December, the Society and
the Scottish Government hosted a
discussion seminar on the European
Commission’s Green Paper on
Options for Reforming Contract
Law within the EU. Speakers
included representatives from the
business community, Scottish
Government, Scottish Law
Commission and the Society.
The green paper makes a number
of suggestions for streamlining the
differences in EU contract law. Two
suggestions that no one takes
seriously are (a) an EU Regulation on
Contract Law that would replace all
existing national contract laws, or (b)
a European Civil Code. But there is
one suggestion that merits serious
consideration: a regulation providing
for an optional instrument (“OI”) of
EU contract law. Existing Scots law
would be unaffected. Why then
introduce such an additional OI?
Suppose a Scottish company
contracts with a Polish company.
Neither party wants the contract to be
governed by the law of the other’s
country. One possibility is to choose
the law of a third country (such as
English law). But another solution,
not presently possible, is that the
parties choose a neutral, non-statespecific system. An OI would be
based on the contractual provisions
of the so-called Draft Common
Frame of Reference (the “DCFR”).
One of the influential drafters of the
DCFR is Professor Eric Clive.
Another situation where an OI
would be useful is that of consumers
and small businesses contracting with
an online retailer such as Amazon.
Amazon does not wish to contract
subject to the laws of each legal
system in the EU. At present – and
this may come as a shock – all
contracts with Amazon are subject to
the law of Luxembourg (whether a
Scottish court would regard such a
term as “fair” under the Unfair Terms
in Consumer Contracts Directive is
another matter). An OI would allow
all such online contracts to be subject
to a standard European code as
presently found in the DCFR.
It seems highly unlikely that such an
OI would be used to govern bespoke
corporate and commercial contracts.
But the option would be there.
Laura Macgregor of Edinburgh
University, in a report to the Scottish
Government (www.scotland.gov.uk/
Publications/2009/03/05095249/0),
has pointed out that “Potentially,
Scots law resembles the DCFR more
than any other European member
state resembles the DCFR.” There
would therefore be little to fear for
Scots lawyers in terms of the content
of the DCFR. But there are some
other important concerns. One is
certainty. At the outset practitioners
would find it difficult to advise on
how the terms would be interpreted.
Another is that, if the EU Court of
Justice is to be the final arbiter, the
resolution of any interpretative
questions on basic points of contract
law would be the subject of
inordinate delay.
Ross Anderson, convener, Obligations
Subcommittee
Notifications
Law Reform Update
Crime, the Scotland Bill and EU
proposals feature strongly this month
EU Commission Green Paper
Sexual Offences Act
The Society brought together
representatives from Scottish
Government, the legal profession and
academics to discuss the proposals
contained within the EU’s Green Paper
on Options for Reforming EU Contract
Law, on Thursday 16 December (see
separate item opposite). The feedback
from the meeting will be invaluable in
forming the Society’s Obligations
Committee’s response to the European
Commission in January.
The Criminal Law Subcommittee will
shortly submit a response to the Sexual
Offences Act (2003) (Remedial)
(Scotland) Order 2010.
Double Jeopardy Bill
The Society gave evidence to the
Scottish Parliament’s Justice Committee
on this Scottish Government bill on 7
December. The Criminal Law
Subcommittee believes that the rule
against double jeopardy should be
retained but that there should be
exceptions to the rule in certain limited
cases, including where new evidence
has emerged which is compelling and
was not available at the original trial, or
when a person subsequently confesses
to having committed an offence when
they had previously been tried and
acquitted. Any exception to the rule
should not be applied retrospectively
and should be limited to more serious
cases tried under solemn procedure.
This view towards retrospectivity was
also voiced by Lord Gill in December.
Reservoirs (Scotland) Bill
The Planning and Environmental Law
Subcommittee submitted a response to
this bill on 25 November. The bill makes
provision for the regulation of the
construction, alteration and
management of certain reservoirs, in
particular in relation to the risk of
flooding, and for the repeal and
replacement of the Reservoirs Act 1975.
The Society welcomed the proposal to
transfer enforcement of responsibilities
to SEPA rather than create a new body
for reservoir safety, but noted that
sufficient resources should be afforded
to SEPA in order to discharge the
obligations proposed.
Proceeds of Crime Act
consultation
The Criminal Law Subcommittee
submitted a response broadly
welcoming the proposals to strengthen
the Proceeds of Crime Act 2002 in
Scotland by extending the list of criminal
lifestyle offences, and also reducing the
criminal benefit amount for the two
other lifestyle tests from £5,000 to
£1,000. However, it noted that this will
create significant resource issues for both
police and prosecutors.
Scotland Bill
The Constitutional Law Committee met
in December to discuss the call for
evidence on the Scotland Bill. The
committee will prepare a memorandum
of comments on aspects of the bill
ranging from competence questions
through to the provision on income tax,
to be submitted to the Scottish
Parliament in mid-January.
Finance Bill
The UK Government has recently
published draft clauses for the Finance
Bill 2011, the content of which will be
confirmed in the budget on 23 March
before final publication on 31 March.
The provisions come under the
headings of personal, pensions,
corporate, indirect, anti-avoidance
and miscellaneous. The Society will
examine the provisions, which can be
found at www.hm-treasury.gov.uk/
finance_bill_2011.htm, with a view to
submitting comments in time for the
deadline of 9 February. If anyone has
any comments on any of the draft
provisions, please email Katie Hay at
[email protected].
Entrance certificates
Issued during November/December 2010
BEALE, Anna Maura
BLACK, Leoni Christina
CAMPBELL, Gillian Jane
HOWIE, Adam Matthew
HUNTER, Jennifer
McMEEKIN, Lucy
SHEARER, Emma
SKENE, Meryl Zoe
THURSTON SMITH, Carolyn Fiona
VELICHANSKY, Andrew Boris
Applications for admission
November/December 2010
DAVIS, Carole Elizabeth
MacDonald
DULING, Kelly Megan
HERBERTSON, Barry Graeme
LANGLEY, Timothy Isaac
McINTOSH, David Martin
McINTOSH, Ralph Leslie
SHAW, Cameron Andrew
SINCLAIR, Callum Stuart
WALLACE, Alistair John
WARDHAUGH, Gillian Elizabeth
Single Market Act
The Single Market Act was adopted
by the European Commission on
27 October 2010. It is not a legislative
measure but a communication for
consultation and comment, consisting
of 50 policy proposals designed to
relaunch the single market and
invigorate the EU economy. The
Commission aims to have a number of
the key initiatives in place by 2012, the
20th anniversary of the single market.
Key policy areas for the law reform
department include company law and
financial services, tax law, intellectual
property and conflict resolution.
Proposals include a review of
accounting directives, a common
consolidated corporate tax base and a
new VAT strategy for companies
operating cross-border, an EU patent,
legislative proposals for the
management of copyrights and orphan
works, and a communication on the
operation of e-commerce, including a
proposal for an EU system for
settlement of disputes from digital
transactions. To view the Single Market
Act, and any of the proposals, visit
ec.europa.eu/yourvoice/.
RFPG welcomes
Lord Rodger
The Royal Faculty of Procurators in Glasgow is to host a seminar on
the work of the UK Supreme Court. The speaker will be Lord Rodger
of Earlsferry, Justice of the Supreme Court. The event is on Thursday,
24 March 2011 at 5.45pm in the Royal Faculty Hall. To book a place
please fill in the form at www.rfpg.org/–cpdform.html, or telephone
the library: 0141 332 3593.
Professional practice Expert evidence
Times have changed since expert witnesses had to wait patiently
for their turn to give evidence, says Paul Barry. Now they may find
themselves “hot-tubbing” together before a judge or arbitrator
Time to take
the plunge?
Experts need
more than just
the knowledge
and experience
required to
support their
opinion: they
must also be
credible and
convincing in
terms of how
they present
their testimony
“Hot-tubbing” – or “concurrent
evidence” as it is formally known – is
becoming an increasingly popular
practice whereby experts from both
sides of a dispute take the stand
together, with the judge or arbitrator
leading a discussion between them.
What makes this approach unique is
the fact that it does, indeed, encourage
an open and frank discussion between
both sides. As such, this model differs
from a traditional cross-examination,
since there are no counsel shaping
the way in which the experts give
their evidence.
At the moment, the use of
concurrent expert evidence is
voluntary, and requires full agreement
from all parties. However, the hottubbing method is already being
championed as an effective way of
tackling the longstanding and
systemic problems associated with
adversarial expert testimony.
The philosophy behind hot-tubbing
Although hot-tubbing represents a
new way of collecting expert
testimony, it retains the most
important features of direct and
cross-examination, as each party still
has a chance to make its own
argument.
However, because hot-tubbing can
be used to solicit the viewpoints of
multiple expert witnesses at the same
time, this model can be especially
useful for cases that include
unusually complex findings,
questions or conclusions.
The construction industry, in
particular, faces a number of
important challenges in this regard, as
design and construction problems
often require a thorough forensic
investigation to determine the root
cause of the issue. Defects in
construction can occur for a variety
of reasons, and can lead to serious
damage, leaks, flooding, mould,
cosmetic flaws and even structural
instability.
With the hot-tubbing model, the
hope is that experts in all of these
areas can “tell it like it is” as they give
their testimony: they can discuss the
case openly, ask each other questions,
and respond to enquiries from the
judge or arbitrator directly. With this
approach, the experts involved can
often find common ground and/or
take the time to discuss any issues
that are proving especially difficult to
resolve. As a result (and because they
are not confined to answering
questions posed by advocates), hottubbing can – at least in theory – help
these experts to respond to each
other's questions more effectively.
However, with the hot-tubbing
model in particular, it’s not only
important to have an expert who
knows his/her topic well, but also to
make sure that the expert has the
knowledge and ability to offer a
convincing argument, especially in
court or in a binding arbitration. In
other words, when it comes to the
hot-tub, experts need more than just
the knowledge and experience
required to support their opinion:
they must also be credible and
convincing in terms of how they
present their testimony.
Further outlook
The Technology and Construction
Court in the UK has recognised the
need for change and has introduced,
in its TCC Guide (2nd edition, 2nd
revision, dated October 2010) the
hot-tubbing model as an alternative
available to the parties. It is
understood that a suitable pilot case
is being sought in order to evaluate
the types of cases that might be
suitable, the extent of cost savings
achieved, and whether the parties and
their advisers perceive the procedure
as an effective and fair basis for
resolving their disputes. For the
moment it is for the parties to choose
this route: it has yet to be tested
whether under the new Guide the
judge can make the decision.
It remains to be seen whether hottubbing will lead to a reduction in
costs, both in litigation and in
arbitration. If parties continue to opt
for both the hot-tub and traditional
methods of cross-examination, then it
is unlikely that the amount of time
saved will be significant. Having said
that, most experts expect the hottubbing model to become more
common in construction disputes and
other areas of arbitration in the future.
To prepare for these changes, all
parties – including arbitrators and
judges – will need to embrace the
purpose of the hot-tub properly,
which is to get to the root of the
issues between the parties in a
constructive (rather than combative)
manner. Even so, the effectiveness
and fairness of this model will
ultimately depend on the tribunal’s
approach and ability to manage the
hot-tubbing process effectively.
Regardless of whether or not the
hot-tub model gains widespread
acceptance in the UK, expert evidence
will continue to be needed when it
comes to resolving disputes
effectively, whether in the
construction industry or in other
areas. In addition to providing
testimony and litigation support,
experts may be required to analyse
the many technical, schedule and cost
issues that arise during arbitration.
Hot-tubbing allows the judge or
arbitrator to draw on a diverse range
of experience and expertise in order
to address complex issues effectively,
so that all sides benefit from the
wisdom of dedicated experts who
fully understand highly technical
concepts. Although all businesses
would prefer to avoid any disputes in
the first place, the ability to call upon
expert witnesses – whether in or out
of the hot-tub – will continue to
be an invaluable part of ensuring a
swift resolution to a wide variety of
legal disputes.
Paul Barry leads the construction
practice area at Navigant Consulting
Don’t miss
in this
section
Experts: Hottubbing”
36
Ask Ash: Advice
column
37
Sponsorship
38
Risk management:
Prize crossword
40
Would the court work
grass be greener
for a disenchanted
corporate lawyer?
Ask
Ash
Dear Ash,
I’ve worked in the corporate sphere
for a few years now and although I’m
earning a good salary and work with
good people, I have become
increasingly disillusioned with my
role. I’m good at my job but I don’t
get any job satisfaction and essentially
feel like a paper pusher. My role is a
far cry from the career I had visualised
for myself when I first pursued the
idea of doing a law degree.
I had aspirations of fighting for
justice and equality and essentially
planned on being a court lawyer, but
as I progressed through university I felt
increasingly pressurised to apply for
roles in the larger commercial firms
due to the allure of the added benefits
and perceived better career prospects.
I’m now craving for a taste of some
“real” law and am considering moving
to a lower paid, more junior role in
order to do court work. However, my
friends think I’m mad to make such a
career move at this stage.
Ash replies:
Many who have ventured on the path
of pursuing a legal career may have at
one time or another fantasised about
becoming the next Perry Mason.
However, in reality even many
court lawyers are unable to experience
the exhilaration of untangling the
mysteries of complex murder cases in
an open court setting. Instead, they
are left to contend with the more
mundane issues of, for example,
explaining why their hapless client
has yet again become embroiled in
criminal activity and why he/she does
not deserve to be sent back to
prison, despite having been
before the court on at least 10
previous occasions!
Before you take the leap of faith
into a new career direction, it may
be wise to confirm that you are
making the move for the right
reasons. Many jobs can become
mundane after a while and it may
be that you are simply requiring
some fresh challenges within your
current role. You could talk to your
manager about the possibility of
taking on further responsibility, or
even going on secondment to
another organisation. This would at
least allow you to confirm whether
you really are dissatisfied with your
career direction or merely the work
you have currently been assigned.
However, if you are determined
to take the plunge to move into
court work then be aware that such
work does raise its own challenges.
Speaking from experience, you
may become frustrated with the
amount of paper pushing involved
in this sphere too. Job satisfaction
is also not a given, even when you
are able to represent the more
vulnerable clients, as client
expectations do not always match
the protection afforded by the law.
You may perceive my views as
seeming quite negative, but I do
think it is important for you to
consider all your options
thoroughly, especially in the
current job market. The grass does
seem greener on the other side,
especially at this bleak time of the
year when Christmas has passed
and resolutions are impulsively
made to kick start the New Year.
Just make sure you do not make a
resolution you later regret.
“Ash” is a solicitor who is willing to
answer work-related queries from
solicitors and trainees, which can be
put to her via the editor:
[email protected],
or mail to Studio 2001, Mile End,
Paisley PA1 1JS. Confidence will be
respected and any advice published
will be anonymised.
Please note that letters to Ash are not
received at the Law Society of Scotland. The
Society offers a support service for trainees
through its Registrar’s Department. For
one-to-one advice contact Katie Meanley,
Manager in the Registrar’s Department
on 0131 476 8105/8200, or
[email protected]
Professional practice Sponsorship
Corporate sponsorship, properly targeted and with carefully defined objectives,
can bring measurable benefits to a business, says Graeme Davies
Money talking
Sponsorship is an interesting word.
Most of us encounter it when an email
arrives in our mailboxes from a friend,
relative or colleague announcing their
participation in some physical
endeavour and asking us to donate to
a particular cause. This is a wonderful
method of fundraising, but we are in
essence being asked for money and in
return are offered nothing more than
that warm fuzzy feeling of helping
those less fortunate than ourselves.
When we translate that into a
corporate context, and to corporate
sponsorship, many people have a
similar mindset to that described
above. Perhaps this is where the
sponsorship industry is at fault,
because corporate sponsorship is not
just about giving – it is about giving
and receiving. What is more, for most
businesses, sponsorship is able to
achieve a variety of objectives in a
more impactful and cost-efficient
way than more traditional marketing
activities.
The key to good sponsorship is to
ask yourself three key questions:
(1) Who is your target audience?
(2) What are you trying to say to this
audience, and what are you trying to
achieve with them?
(3) How will you measure success?
one project, defining exactly which
audiences you are targeting should be
given proper consideration.
Once you have clarified in your
own minds exactly which audiences
you are trying to reach, you are then
able to research their geographic
distribution, demographics and their
particular passions. These form one
dimension of successfully selecting the
right sponsorship programme.
Your objectives
Sponsorship is a part of your wider
marketing mix; it provides a platform
for engagement, branding and
commercial returns, and it has the
potential to transfer its brand values to
your business. Therefore, decisions
regarding what any company chooses
to sponsor need to follow the same
process as any other marketing
decision: they need to be strategic and
you need to know precisely what you
are trying to achieve.
Sponsorship
is part of
your wider
marketing mix;
it provides a
platform for
engagement,
branding and
commercial
returns, and
it has the
potential to
transfer its
brand values to
your business
The diagram on the right indicates
the three core types of sponsorship
objectives and should be used to
interrogate the organisation on
precisely what it is you are trying to
achieve. This can be brand led
(whether that be about altering
perceptions or increasing
consideration), engagement based
(business-to-business, employee or
community relations), or commercially
orientated (such as winning new
business). If you have primarily brand
based objectives, then you are likely to
want a sponsorship that gives you
visual crediting opportunities, that
aligns your brand with that of the
sponsored organisation and gains
some media exposure that your
audiences are likely to see. Similarly, if
you are looking to build relationships
with specific groups, then you will be
looking for engagement opportunities
where you can speak directly to your
audiences, invite them to events etc.
Target audiences
Most businesses know something
about their customers, but are they
really your only audience? What about
those individuals who refer business to
you such as accountants or IFAs? These
are also your stakeholders and could
be positively influenced by your
sponsorship activities.
Even outside this “supply chain”
you should also consider wider
audiences such as regulators,
journalists and other influencers in the
legal sector. Sponsorship activities have
the capacity to reach out to a variety of
different individuals and provide a
solid platform on which to build
engagement with these harder-to-reach
audiences. While you should not
attempt to target everyone through
Evaluation
Sponsorship is often blamed for being
less measurable than advertising (or
indeed, impossible to measure).
However, if you set clear and “SMART”
objectives at the outset, evaluation of
the outcomes from sponsorship
becomes transparent. Specific,
Measurable, Achievable, Relevant and
Timebound objectives help to keep
focus on the goals you are trying to
achieve and should help to ensure that
you concentrate resources accordingly.
The focus for sponsorship
evaluation is often to review the return
on investment (ROI), which is usually
undertaken by measuring data such as
media coverage or new business wins.
There is sometimes a place for this, but
only if it is linked to one of your key
objectives. The power of sponsorship
is to achieve returns for a broad range
of objectives and therefore a more
important measure is the return on
objectives (ROO).
For example, a sponsorship
might be undertaken to develop
relationships with accounting
professionals in order to achieve more
referrals. This could be measured by
research among this group before,
during and after the implementation
of a sponsorship to see how their
opinion of your firm has altered. It
could also be measured by tracking
referral rates historically and into
the future.
In essence therefore, the key to
measuring returns from a sponsorship
is again focused on what you are trying
to achieve.
Sponsorship objectives
B2B relationships
Co-sponsor alliances
Employee motivation
Investor influence
Government lobbying
NGO networking
Industry positioning
Reputation management
Community relations
Awareness
Association
Perception
Favourability
Relevance
Consideration
Trial
Loyalty
Bonding
Advocacy
Engagement
Brand
Commercial
Media buy
Showcasing
Sampling
Promotions platform
On site sales
Reward provision
Supply chain incentives
Database-building
Innovation catalyst
Spoiling tactics
Repeat purchase
Usage increase
© Sponsorship Consulting 2010
The power of
sponsorship
is to achieve
returns for a
broad range
of objectives
and therefore a
more important
measure is the
return on
objectives
Sponsorship selection
If you were trying to sell the latest
Lady Gaga album, then you probably
would not place advertising in the
Financial Times simply because the
boss of the record label reads it! In
exactly the same way, you should not
choose a sponsorship based on one
person’s passion and yet, as sensible
as that may seem, lots of companies
fall into this trap.
When selecting a sponsorship
platform you need to consider your
audience and your objectives, but you
must also bear in mind your brand
values, how your business is
perceived and the message you want
to convey. When individuals make a
buying decision about legal
representation, they want somebody
reliable and trustworthy – so a highrisk project like motorsport might not
be suitable.
Similarly however, if you are a new
and young partnership challenging
the traditional thinking of the older
firms, then 18th century portraiture
might not be the best fit for your
brand. Choose an association that is
relevant to your business, and
a project that will reach your
audiences, resonate with your
brand personality and deliver on
your objectives.
In summary therefore, whether
you are a multinational firm or a
local partnership, sponsorship
may be a much more powerful
tool to really engage with your
audiences than anything else in
the marketing mix. Provided it is
well selected and focused on clear
objectives, sponsorship can be
proven to deliver real returns for
your business.
Graeme Davies is the Scottish director
of Sponsorship Consulting, a specialist
consultancy that advises a cross section of
businesses about their sponsorship and
partnership marketing activities.
www.sponsorshipconsulting.co.uk/
graeme.davies@sponsorship
consulting.co.uk
CASE STUDY: Morisons LLP
Morisons LLP is a
progressive law firm
with offices in Edinburgh
and Glasgow. It has
built its reputation on
approaching issues from
the clients’ perspective,
and its sponsorship
activities are aligned
completely with their
business activities.
Falkirk Rugby Football
Club has been promoted
six times in the past seven
seasons and, as such, was
an appealing brand fit for
the firm. In addition, rugby
was found to fit Morisons’
target audience perfectly.
The sponsorship delivers
a range of opportunities
for the firm including
branding, hospitality
and engagement with
audiences and, most
importantly, it adds to
the bottom line of
the business.
Peter Duff of Morisons
LLP said: “Sponsorship by
any business in these
financially difficult times is
not something we do
lightly. We have identified
something in Falkirk RFC’s
approach to achieving the
top spot in Premier One
that reflects our own
philosophy in business.”
The success of
Morisons’ rugby
sponsorship has led the
firm to consider other
sponsorship opportunities
as well. Recently,
Morisons announced a
three-year deal with
Scottish golfer John
Gallagher, the touring
professional at Swanston
Golf Club and the 2007
Scottish Amateur
Champion. Again, this
sponsorship is designed
with specific business
objectives in mind and will
link in to a forthcoming
business development
strategy of the firm.
Advertisement in Scrum
magazine showing
Morisons’ sponsorship
Professional practice Risk management
Enter Marsh’s risk management-themed crossword competition for the
chance to win a magnum of champagne – and earn yourself three hours’ CPD!
Risky
business?
At the start of a new year, what
better time to refresh your
awareness of current risk issues
by taking our crossword
challenge? The clues all relate to
risk management articles in the
Journal over the course of 2010
and, if you find yourself
occasionally being transported
back to happy hours in the
cinema, rest assured – all
references to films (past or
present) are strictly intentional.
To enter, simply send your
completed entry to Calum
MacLean by 28 February 2011.
Successful entries completed
online via the Marsh website
(www.marsh.co.uk/ lawsociety)
will also enable you to print out
a certificate for CPD purposes.
You’ll need a username and
password to access the site, so if
you don’t already have one, or
have forgotten it, contact Calum
MacLean of Marsh (details in the
panel below). Good luck!
ACROSS
1 Where can you access
e-learning modules,
workshop materials and a
range of risk management
advice? The answer lies in
here. Look at the February and
November risk management
articles if you need a couple
of pointers. (11)
4 Master Policy lead insurers
RSA provided some handy
advice. If only Mr Lawless
had thought of it too, he
might have avoided a costly
claim. (September) (8)
6 You May need special glasses
to get the 3D effect when
viewing Lindsay Kerr’s case
9
10
13
14
15
study on the dangers of
acting for family and friends.
If the first dimension is
dabbling, don’t be slow in
working out the second. (5)
Instructions were finally sent
to counsel in September
regarding the personal injury
claim by Paul Haggis
following a crash. B & Co,
the instructing solicitors,
found themselves facing a
second claim hot on the
heels of Mrs Tickle’s. What
had they missed? (9)
June Clarence, a partner at
Capra & Co, contacted Marsh
to enquire about top-up
insurance. Their client, Mr
Potter, wished to instruct
them in the purchase of a
major development site at
Bedford Falls. The transaction
was significantly bigger than
anything the firm had been
involved in previously, or was
likely to be involved in for
the foreseeable future. June
was delighted to discover that
the practice could purchase a
one-off policy to cover the
increased risk. True? (5)
It was Guy Fawkes’ month
to audit them and check
they were all up to date.
This one was. (4)
If you want your
conveyancing practice to
have a smooth run in this
cold economic climate,
don’t forget the significance
of a clean sled rim.
Confused? (July) (6,6)
Give us a break! If you want a
clear direction from us on
risk management, our first
word would be not to stand
Calum MacLean and Marsh
Calum MacLean is a former solicitor in private practice who works in the FinPro
(Financial and Professional Risks) National Practice at Marsh, the world’s leading risk
and insurance services firm. To contact Calum, 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 for
insurance mediation activities only.
17
19
20
22
23
24
25
26
still. For a good starting
point, we set out some
procedural improvements in
July. Be specific. (6,6)
If you’re asked about break
notices, ensure that you “take
the fifth”! (July) (7,3,8)
When Antonio visited
Shylock at Christmas, he was
lent this book. Its title left
him with three initial
impressions. (3)
It’s a question of assessing
priorities. Alistair Sim
provided readers with
a sample extract in
December. (4,8)
This was a critical issue when
deciding whether or not to
take on Mr Fals as a client.
(November) (14)
Olivia Burren, of Master
Policy co-insurers Travelers,
recommended this course
of action to check the efficacy
of operative clauses.
(October) (4,3)
These should be at the top of
your list of New Year’s risk
management resolutions.
(December) (10)
Melvin’s solicitors didn’t
hear the call for last orders.
(August) (4,3)
A structured approach to
getting fit might pay
dividends in your working
life too. (February) (8,4)
DOWN
2 Calum MacLean suggested
that workflow and case
management systems can
help reduce the risk of these.
They’re easily overlooked.
(August) (10,3,9)
3 This is an ability you can take
with you. It’s a data security
risk. (August) (11)
5 The third dimension (see 6
across). Wayne Szalinski
could have suffered a similar
claim. It’s a shrinking
problem? (10)
7 Due to a mix-up the actor
lingered in the studio,
working into the night.
Ultimately, he would be
judged by his deeds. It was
a “top risk issue” in
December (4,9)
8 Auld Lange & Syne LLP were
acting for Mr Grinch, the
owner of New Year Ltd in the
acquisition of Christmas Inc.
The negotiations were
protracted, but a deal was
eventually signed. The terms
What better time to refresh
your awareness of current
risk issues by taking our
crossword challenge?
of the deal resulted in Mr
Grinch taking on the liability
for a significant claim against
Christmas Inc, which Mr
Grinch alleged he had never
agreed to take on. The
practice insisted that he had
agreed to it at one of the
final negotiation meetings.
What might assist Auld Lange
& Syne defend themselves
against Mr Grinch’s
allegations? (April) (4,5)
11 Only these goals have the
answer! (March) (5)
12 If it’s good, your practice will
get a Master Policy premium
discount. If it’s bad, your
practice could face a
premium loading of up to
275% (March) (6,6)
16 “An allegation by a client of
a failure by the practice to
follow ________ is a
surprisingly common cause
of claims in all practice
areas”. (April) (12)
18 In February, Calum MacLean
suggested that these sources
of information from the
Law Society of Scotland were
one good way of keeping
up to date. (10)
21 It’s a question of style – but
don’t count on the substance
adding up without doing this.
It’s a clause for concern for
Travelers (October). (8)
Terms and conditions
The winner will be chosen at
random from the correct entries
submitted by 28 February 2011.
Only one entry per person.
There is no alternative to the prize
offered and it is not transferable.
We reserve the right to add to or
change any of our competition terms
and conditions at any time without
prior notice.
The competition is not open
to employees of Marsh Ltd or
Connect Communications or their
immediate families.
Crossword entries should be sent:
BY POST
Calum MacLean,
Marsh Ltd,
Orchard Brae House,
30 Queensferry Road,
Edinburgh EH4 2HS.
LP1 Edinburgh 15
DX 539940 – 19
BY E-MAIL
[email protected]
Professional briefing Civil court
Cut the risk
of harm
Guidance from the Inner House on interim orders, and the
burden of proof of prescription, lead the recent decisions
on civil court practice, as Sheriff Lindsay Foulis reports
Interim awards ad factum
praestandum
In Whyte & Mackay Ltd v Capstone
International Inc [2010] CSIH 87 Lord
Hardie, in giving the opinion of the
Inner House, made observations as to
the principles which apply in
considering whether orders ad factum
praestandum should be made ad
interim. The defenders sought an
order ordaining the pursuers to
continue to perform a contract,
enabling them to continue to
distribute the pursuers’ product in
the USA.
In particular, Lord Hardie observed
that the court should consider
whether the balance of convenience
was such as to justify the making of
such an interim order, bearing mind
the nature and degree of harm likely
to be suffered on either side by the
grant or refusal of the interim order
and the relative strengths of the
parties’ positions. In the early stages
of litigation when the facts had not
been established, one consideration
should be to minimise the risks of
harm to either party in the event that
the granting of the interim award was
ultimately proved to be ill founded.
Onus of proof
In Pelagic Freezing (Scotland) Ltd v
Lovie Construction Ltd [2010] CSOH
145, the pursuers sought damages in
respect of damage arising from water
ingress through a roof. The defenders
pled that the claim had prescribed
and relied on ss 6(4) and 11(3) of
the Prescription and Limitation
(Scotland) Act 1973. A preliminary
proof was assigned on this issue and
the matter Lord Menzies required to
address was upon which party the
onus of proof initially lay. The parties
had agreed that in relation to matters
which might delay the running of
prescription in terms of s 11(3) or
6(4) of the 1973 Act, the onus lay on
the pursuers. However, there was a
dispute as to where the onus initially
rested in terms of s 11(1).
On reviewing authorities, Lord
Menzies noted that in Dunlop v
McGowans 1979 SC 22 (also 1980 SC
(HL) 73), the Lord Justice Clerk, Lord
Wheatley, observed at 34 that the
extinction of an obligation by the
operation of prescription meant that
there was no legal right in existence
and thus it was a matter of which a
court could take account ex proprio
motu. The pursuers were in effect
asserting that they had an existing
legal right against the defenders and
thus in doing so were making an
affirmative proposition that they had
such a right. In those circumstances,
it was logical that the onus initially
rested with the pursuers.
Contempt of court
As a follow-up to the recent reference
to NJDB v JEG (see November
article), Sheriff Robertson required to
consider a matter in the course of the
proof and issued an opinion on
22 January 2009 in Stirling Sheriff
Court. In the course of the defender
being cross examined, she was asked
about her failure to allow contact in
contravention of a court award. Her
counsel argued that she was entitled
to be warned against incriminating
herself and in particular she did not
require to answer any question which
might risk a finding that she had been
in contempt of court.
Sheriff Robertson declined to
administer such a warning for a
number of reasons. First, the action
was one for contact, not a minute
seeking a finding of contempt. The
two were distinct processes with the
onus of proof being higher in the
latter. It was clear from the pleadings
that the father and the child’s curator
considered that the mother had been
acting in contravention of the award.
Further, the mother had given
evidence in chief regarding these
matters and to allow her to refuse to
answer questions put in cross
examination on such issues would
leave the sheriff in a very difficult
position in attempting to assess the
party’s evidence on such matters
when it had not potentially been
subject to cross examination.
Sheriff Robertson also made the
observation that when applications
were made to find a party in
contempt in such actions as a result
of failure to obtemper the likes of
contact awards, such required to be
Don’t miss
these
essential
briefings
Civil court:
Roundup
42
Insolvency:
Trust deeds
44
Licensing:
Drinks promotions
45
Children: Hearings
and “relevant
persons”
46
Environment:
Habitats and land
use plans
48
Sport: Niculae
in the CAS
49
Websites: Scots
blawgs
50
Book reviews:
Resilience;
Drafting;
Sexual Offences
51
The pursuers were in effect
asserting that they had
an existing legal right
against the defenders
dealt with summarily. It was, in his
opinion, inappropriate to hold these
matters in abeyance as a means of
compelling the adherence to an
interlocutor awarding contact.
Contempt proceedings should not be
engaged lightly. If instituted, then
they should be the subject of separate
and immediate inquiry.
The sheriff further observed that
the fact that prior minute proceedings
for contempt had been dismissed of
consent did not mean there was an
acceptance that the party had not in
fact been in contempt.
Expenses
In Benjamin v The Standard Life
Employees Services Ltd, Edinburgh
Sheriff Court, 17 December 2010, the
issue before Sheriff Principal Bowen
was the allowance of the costs of
reports from experts employed by a
party in a litigation in which defences
had been lodged. The action,
however, was resolved prior to a
proof being allowed. Provided the
work carried out by the expert was
relevant and necessary for the proof
of matters on record, the costs were
recoverable.
Sequestration
In Accountant in Bankruptcy v Grant,
Edinburgh Sheriff Court, 27 October
2010, a summary application had
been presented seeking various orders
as a consequence of the discharge of a
trustee and the bankrupt and then the
bankrupt becoming entitled to assets
as a result of a claim against a third
party. Sheriff Holligan, on reviewing
authorities, first concluded that the
discharges did not bring the
sequestration to an end. In terms of
the Bankruptcy (Scotland) Act 1985
such an asset was property in the
sequestration and any discharge did
not alter that fact. An application in
terms of s 29(6) of the Act however
was not competent. The
circumstances did not fall within the
ambit of the provision.
Turning to the operation of s 63 of
the 1985 Act, Sheriff Holligan did not
consider that the provisions of
s 63(1)(a) were sufficiently wide.
However, he considered that the
application was “connected with” the
sequestration process, and thus it fell
within the ambit of s 63(1)(b).
Update
Since the last article Hepburn v Royal Alexandra Hospital NHS Trust (September article has been
reported at 2010 SLT 1071, Steel v Steel (September) at 2010 SLT 1085, Ewing v Times
Newspapers Ltd (September) at 2010 SLT 1093, The Scottish Ministers v Smith (July) at 2010 SLT
1100, 2010 SCLR 669, Chief Constable Northern Constabulary v A (July) at 2010 SLT (Sh Ct) 203,
and Matthew, Petr (July) under the name H’s Curator Bonis, Applicant at 2010 SLT (Sh Ct) 230.
Professional briefing Insolvency
Careful attention is needed to the new provisions in the
Home Owner and Debtor Protection Act, and related
regulations, covering sequestration and trust deeds,
especially where a house is excluded
Trust rewritten
In “An orchestra of instruments”
(Journal, October, 22) Mark Higgins
examined Part 1 of the Home Owner
and Debtor Protection (Scotland)
Act 2010. We now examine Part 2,
which deals with sequestration and
trust deeds and introduces some
much needed, and some
controversial, changes.
Section 9 introduces the certificate
for sequestration. This addresses the
longstanding problem of constituting
“apparent insolvency” as defined in
s 7 of the Bankruptcy (Scotland)
Act 1985. The option of a debtor
application for sequestration with
creditors’ concurrence is abolished.
On application by the debtor, an
authorised person may grant a
certificate that the debtor is unable to
pay debts as they become due, if the
debtor can demonstrate that is the
case. The Act is supplemented
by the Bankruptcy (Certificate
for Sequestration) (Scotland)
Regulations 2010 (SSI 2010/397), in
force from 15 November 2010. An
authorised person is an insolvency
practitioner (or someone working for
an IP and authorised to grant
certificates on his behalf), or certain
money advisers, provided they are
not an associate of the debtor.
The debtor has to be given a debt
advice and information pack before
the certificate is granted, and has to be
advised on the options open and the
consequences of sequestration.
The certificate is to be in the form
annexed to the regulations and issued
at no charge, and is valid for a debtor
application for sequestration within
30 days of the date of the certificate.
Excluding the home
Section 10 amends the 1985 Act on
trust deeds. The effect is to allow the
exclusion from the estate conveyed to
the trustee of the whole or part of a
debtor’s dwellinghouse where a
secured creditor is excluded from the
trust deed arrangements in respect of
any debt for which that creditor holds
security. In this context, the debtor’s
dwellinghouse is a house which on
the day preceding the date of the trust
deed was owned (either alone or in
common with others) by the debtor
and was the sole or main residence of
the debtor, irrespective of whether it
was used to any extent for any
profession, trade or business.
The powers of a trustee in
sequestration in s 40 of the
Act in relation to the debtor’s
family home contained are
extended to the trustee acting
under a trust deed, and the
sheriff’s power to postpone
the granting of an
application for right
to sell is extended
from 12 months to
three years. Trustees
are also obliged
before commencing
proceedings before a
sheriff to give notice of
the proceedings to
the local authority.
The requirement to
advertise the award of
sequestration in the
Edinburgh Gazette and
the requirement to give
notice in the Gazette of the
appointment of a replacement
trustee are both abolished.
The Protected Trust Deeds
(Scotland) Amendment
Regulations 2010 (SSI
2010/398), also in force
from 15 November 2010,
make further and
consequential amendments
to the provisions relating to
One of the
controversial
areas of debate
is the question
of what
happens in
the event
of a sale of
the excluded
dwellinghouse
trust deeds and prescribe additional
conditions for protected status
for a trust deed which excludes a
dwellinghouse, stipulating the form
of the consents required from the
debtor and the secured creditor. A
new requirement is introduced for the
debtor to agree to acquirenda going to
the trustee.
Where a dwellinghouse is excluded,
provision is also made for other
creditors to receive additional
information, including the effect of the
exclusion on any dividend, the value
of the excluded dwellinghouse and the
debt owed to the secured creditor.
One of the controversial areas of
debate on these changes is the
question of what happens in the
event of a sale of the excluded
dwellinghouse. The advice
received by the Accountant
in Bankruptcy is believed to
be that any equity after
payment of the secured
creditor would be
acquirenda; there is,
however, a school of
opinion which holds that
as the dwellinghouse has
been excluded, the proceeds of sale
cannot be acquirenda as they are not
property acquired by the debtor after
the date of the trust deed but merely
the excluded property in a different
form. It is not clear which result
accords with the legislative intent
of the Act or amendments, but
practitioners receiving instructions
from a debtor still subject to a trust
deed with an excluded dwellinghouse
will require to consider very carefully
the advice they give a debtor
intending to sell that excluded
dwellinghouse.
Alistair Burrow, Head of Recovery and
Insolvency Team, Tods Murray LLP
Professional briefing Licensing
The first judicial decision on what constitutes
an irresponsible drinks promotion has taken
a welcome commonsense approach
Promoting
responsibility
When the 2005 Act was first mooted,
some of the main talking points were
paras 7 and 8 of sched 3 – pricing of
alcohol, and irresponsible drinks
promotions. I recall that shortly after
it came on to the statute book there
were many discussions about what
would and would not be permissible.
In practice, most licensees have
simply gone along with what the
local licensing standards officer has
decreed. In part, this is for an easy life,
Far too often
licensing
standards
officers have
tried to be
the judges
of what an
irresponsible
drinks
promotion
involves
but the realpolitik is that most hardpressed pub, club and hotel owners
simply cannot afford the many
thousands of pounds which an
appeal is likely to cost. Even if your
friendly licensing expert were to offer
a no win, no fee service, the prospect
of the council’s (with counsel’s)
expenses is a very frightening one.
It was therefore welcome to see the
first judicial decision on the point, in
the case of Mitchells & Butlers Retail
Ltd v Dundee City Licensing Board. This
was a decision of Sheriff Principal
Dunlop on 6 December 2010.
Mitchells & Butlers issued student
discount cards in respect of a pub in
Dundee. These allowed a fixed
discount to card holders. The scheme
was not limited by time. The board
had taken the view that this
constituted a breach of para 7 of
sched 3. As we all know, that
paragraph prohibits changing the
price of alcohol except (a) at the
beginning of licensing hours, and (b)
no earlier than 72 hours afterwards.
The board’s reasoning was that the
activity complained of constituted a
price variation, in that discount card
holders were paying a different price
from non-card holders. At a review
hearing, a written warning was issued.
Mitchells & Butlers’ appeal was
upheld. Both parties, and the sheriff
principal, agreed that the wording of
the Act was ambiguous. The court
accepted the argument that one
should look to the purpose of the
legislation, in this case to prevent
happy hours and attempt to cut down
binge drinking. As the price for
discount card holders did not change,
the court held that the Act had not
been contravened. In passing, the
sheriff principal seemed to agree that
there was no prohibition on different
prices applying in different parts of
the same licensed premises, e.g. a
public bar and lounge bar.
It is to be hoped that this
commonsense approach will spread,
particularly in the interpretation of
para 8. Far too often licensing
standards officers have tried to be
the judges of what an irresponsible
drinks promotion involves. In fact,
such a promotion is defined in para
8(2) and (3), shortly to be extended
by the Criminal Justice and Licensing
Act 2010. Thus the offer of a free glass
of fizz on Valentine’s Day or Mother’s
Day is perfectly legal. Some idiots
have tried to argue this is a “reward”.
Following the Mitchells & Butlers case,
you have to look at the purpose of the
legislation – to stop nightclubs
offering booze as prizes for games of
doubtful merit and morality.
But do be aware of the
ways your clients can fall foul
of the law. What about hospitality
packages involving a free bar?
Or your golf club dinner with
unlimited wine? Both are now
struck at. This schedule requires
careful reading.
Tom Johnston, Young & Partners LLP,
Dunfermline and Glasgow
Professional briefing Children
What is the effect of the Supreme Court decision in
the K case on current and pending legislation on
appearing before children’s hearings?
Fathers
made
relevant
Unmarried fathers whose family life
with their child might be affected by
the decision of a children’s hearing,
have a right to be considered a
“relevant person” and to be heard
accordingly, the UK Supreme Court
ruled in a seminal case last month.
In Principal Reporter v K [2010] UKSC
56 (15 December 2010) the court
unanimously allowed an appeal by
“K”, registered as the father of a child
(L, born in 2002), but separated from
L’s mother, and held that a sheriff had
competently made an order granting K
“parental rights and responsibilities to
the extent that he becomes a relevant
person in the children’s referral”.
K had contested an allegation by L’s
mother that he had abused L while
exercising contact. K had attended
children’s hearings following the
sheriff’s order, but when he appealed a
condition imposed by the hearing of
no contact with L, the Principal
Reporter challenged the order in the
Court of Session on the ground that it
was incompetent. The Lord Ordinary,
affirmed by the First Division,
suspended the order.
Decisions by the sheriff in relation to
children’s hearings are not appealable
to the Supreme Court, but the present
proceedings being a petition for
suspension begun in the Court of
Session, appeal was competent.
(Ironically, the justices doubted that
the petition for suspension was itself
competent, as the interlocutor
challenged had been allowed to
stand for over two years and had
been acted on.)
Fundamental issue
Three issues were agreed to arise
in the appeal:
(i) whether the sheriff’s interlocutor
was competently pronounced;
(ii) whether s 93(2)(b) of the
Children (Scotland) Act 1995, defining
persons entitled to participate in a
children’s hearing, operated in a
manner incompatible with K’s rights
under article 6, 8 or 14 of the
European Convention;
(iii) if so, whether such
incompatibility could be addressed by
reading the provision down under s 3 of
the Human Rights Act 1998.
At the outset of a single judgment
prepared by Lord Hope and Lady Hale,
A parent (or
other person)
whose family
life with the
child was at
risk in the
proceedings
had to be
afforded a
proper
opportunity to
take part in
the decisionmaking process
the court noted “a fundamental issue
about fairness”, arising from (a)
consideration by the children’s hearing
and the sheriff, in K’s absence, of the
grounds of referral, when those grounds
“were based in part on allegations about
K’s conduct which, if found to be
established, were bound to affect the
way L’s case was dealt with from then
on”; and (b) the hearing’s decision to
deny all contact between K and L, which
effectively superseded any contact order
made by the sheriff court, but in which
K had no right to appear without
obtaining an order in separate
proceedings. Both aspects struck the
court as “quite contrary to one of the
fundamental rules of natural justice”.
The First Division had held the
sheriff’s order in K’s favour incompetent
on the view that the sheriff had failed to
address the overarching principles in
s 11(7) of the 1995 Act, and thus had
acted outwith the powers conferred by
the Act. But the Supreme Court held
there was “no sound basis” for this view;
“In any event, such a failure, while it
might be a ground of appeal, would
not normally render the order
incompetent”. Nor did the sheriff’s
failure to refer expressly to the relevant
provisions of the Act and to the relevant
parental responsibilities and rights have
that effect.
Professor Kenneth Norrie of
Strathclyde University explained to the
Journal that whereas it had been
assumed that a s 11 order could not be
used to confer relevant person status,
the court had held that the sheriff’s
interlocutor did not do so “but
instead granted the father parental
responsibilities and parental rights,
and also limited the exercise of these
responsibilities and rights: a by-product
of the order was to confer relevant
person status. As this was competent
within the terms of s 11, the interlocutor
should stand”.
Facing up to rights
Although K’s arguments under the
Convention assumed the incompetency
of the order, the court said that as a
public authority it had its own duty to
act compatibly with the Convention
rights. “If we take the view that these
have been infringed in the case before
us, that duty requires us to say so.”
The first step was to establish that the
father and child had a family life
together. This was not disputed given K’s
previous involvement with L.
Next, it had to be shown that a public
authority had interfered with the right to
respect for this family life. This too was
undisputed. “In case after case”, the
justices observed, the Human Rights
Court “has found violations of article 8,
not because of the substance of the
decision taken by the national
authorities but because the family were
not sufficiently involved in the decisionmaking process”.
The next question, therefore, was
whether that interference was “necessary
in a democratic society”. The only
justification advanced was that
children’s hearings were meant to be
informal round-table discussions with
only those present who could make a
meaningful contribution to the debate.
The court agreed that it was important to
restrict the numbers involved to those
whose participation was necessary. “But
it is difficult to see how excluding a
father such as this can possibly be
proportionate to that aim.”
Further, by not recognising the
unmarried father as a relevant person,
the 1995 Act imposed an obstacle on
such fathers seeking to be heard at
children’s hearings, being the necessity
to seek and obtain a s 11 order. Such a
procedure tended to be much slower
than hearings acted, and important
long-term decisions might be made
before the father had a chance to
be heard.
On this aspect Professor Norrie
observed: “This is stated in relation to
the art 14 discrimination point, and is
probably not of general application. So,
it may be that a burdensome procedure
is compatible with the ECHR if applied
to, say, foster carers, or even
grandparents with family life. It is not
permitted in discriminatory situations:
for example for unmarried fathers as
opposed to married fathers, or
The decision
is “good
news for the
children’s
hearing system
because it lifts
the cloud of
unfairness that
has been
hanging
over its
proceedings”
unmarried fathers of children born
before 4 May 2006 [commencement of
the Family Law (Scotland) Act 2006] as
opposed to unmarried fathers of
children born after that date.
Going with the grain
In the result, a parent (or other person)
whose family life with the child was at
risk in the proceedings had to be
afforded a proper opportunity to take
part in the decision-making process. As
currently constituted, the children’s
hearing system violated the article 8
rights of K (and indeed of L), and risked
violating the rights of others in the same
situation. The children’s hearing had to
have the best and most accurate
information that it could in order to
make the best decisions about the child.
That did not mean, the court added,
that all unmarried fathers had to have
the same rights. “The case law suggests
the opposite: that the initial allocation
of parental rights and responsibilities to
mothers alone can be justified because
of the wide variations in the actual
relationships between unmarried fathers
and their children; but that if an
unmarried father has in fact established
family life with his child, it is no more
justifiable to interfere in that
relationship without proper procedural
safeguards than it is justifiable to
interfere in the relationship between a
married father and his child. If this
analysis be correct, a complaint under
article 14 would succeed if a complaint
under article 8 would succeed and
would fail if a complaint under article 8
would fail.” No separate issue arose
under article 6.
Having considered how to avoid
having to make a declaration of
incompatibility under article 3, the court
proposed the solution in the panel
above as going “very much with, rather
than against, the grain of the legislation.
The aim of the hearing is to enlist the
family in trying to find solutions to the
problems facing the child. This is simply
widening the range of such people who
have an established relationship with
the child and thus something important
to contribute to the hearing. Mostly,
these will be unmarried fathers, but
occasionally it might include others”.
“Relevant person” redefined
Section 93(2)(b) of the Children (Scotland) Act 1995 defines “relevant
person” as a person (including a parent) with parental responsibilities or
parental rights or who appears to be a person who ordinarily has charge
of, or control over, the child. In allowing the appeal, the Supreme Court
declared that the definition should be read so as to include the words
“or who appears to have established family life with the child with
which the decision of a children’s hearing may interfere”.
Initial comment
Morag Driscoll, Director of the Scottish
Child Law Centre, described the
decision as “good news for children
because it should lead to better
informed decisions being made about
their lives, as unmarried fathers and
other people who have established
family life with the child can now be
involved in the hearing’s discussions. It
is also good news for the children’s
hearing system because it lifts the cloud
of unfairness that has been hanging
over its proceedings”.
Professor Norrie commented:
“Effectively, this decision renders the
definition of ‘relevant person’ in the
1995 Act conterminous with ‘family
life’ as defined by the ECHR.” That was
relevant to the newly passed Children’s
Hearings (Scotland) Bill, which
considerably narrows the definition.
While those outside the definition
can gain the status by going through a
new process, the court has held that
the automatic imposition of a
burdensome procedural hurdle is
contrary to article 8.
He added: “The problem is that the
new Act cannot be cured in the way the
1995 Act was, because the new
definition is far more precise and there
is no ‘catch-all’ clause such as the one
in the 1995 Act that could have
words read down into it. Thus the
Government showed foresight in
adding at stage 3 a new part to the
definition of relevant person: ‘any other
person specified by order made by
Scottish Ministers’. An order will require
to be made before the Act can be
brought into force.
“This is hugely important because it
renders far less important the debates
and disputes about the new process as
the bill was going through Parliament.
The Government wanted (i) a strict,
legalistic, definition of relevant person;
and (ii) a new procedure whereby those
not within the strict definition can
nevertheless be deemed to be relevant
persons. It wanted clarity, moderated by
discretion. The Supreme Court has said
that automatic access to the process
must be granted to all those whose
family life might be at issue. That new
rule cannot be read into the strict
definition and Scottish ministers will
have to extend it by order. This will
reduce very substantially the need to
use the new procedure for obtaining
relevant person status. That is good: I
argued throughout the parliamentary
process that we should go back to the
1995 position (as now clarified by the
Supreme Court).”
Peter Nicholson
Professional briefing Environment
There are some hundreds of “European sites” in Scotland
attracting special protection for species and habitats,
and the rules on land use assessment are complex
Tread
warily:
habitats
This article focuses on the issues and
challenges illustrated in the recently
published guidance by Scottish
Natural Heritage (SNH) entitled
Habitat Regulations Appraisal of Plans –
Guidance for Plan-Making Bodies in
Scotland. It underlines the continuing
impact of European environmental
law on the planning system and the
added complexity of applying
“appropriate assessment” under the
Habitat Regulations 1994 to land use
plans that affect “European sites”.
European sites are of international
importance for species and habitat
protection, and comprise special areas
of conservation (currently 239 in
Scotland), special protection areas
(SPA; currently 147 sites), and
RAMSAR sites (wetlands). They are
not restricted to the remoter parts
of the country, and the River Forth
is a SPA, as is land adjoining
Glasgow airport.
As with the rest of the UK, the
Scottish planning system operates a
“plan-led” system of decision making,
with the Planning Act 1997 placing
a strong legal presumption on
development proposals that are in
accordance with a development
plan and conversely a strong legal
presumption against proposals that
are not. What is noteworthy is that
although land use plans do not
themselves grant project consent, their
impact is sufficient to be caught by the
directive, and this point has been
ruled on in Commission v UK (C-6/04)
[2005] ECR I-9017. This case led
to an amendment to the Habitat
Regulations by adding regs 85A-85F to
apply them to land use plans.
Duty to assess
The strict legal protection requires
complex legal procedures to be
adopted by any “competent authority”
for the purposes of considering any
“project” or “plan” affecting a
European site. The project or plan
need not involve development on the
site, as the test is one of significant
effect regardless of the development’s
location. A competent authority is the
decision maker on the project or plan.
Failure to comply may result in
such a decision to approve a project
or plan being set aside by the courts
following a successful legal challenge.
With land use plans increasingly
becoming the focus for promoting
development, the requirement for
engagement with the Habitats
Directive and the Habitat Regulations
will continue as a risk area.
The Habitat Regulations specify
what type of land use plan requires
to be assessed, and these include
the national planning framework,
strategic development plans,
local development plans, and
supplementary guidance. Core path
plans are covered under reg 69A.
Other types of plans not explicitly
referred to in the regulations will need
to be subject to appraisal for their
effects on European sites, because
Where a plan or
project might
undermine
European sites,
the effects must
be considered
significant. It is
the potential
effect on the
ecological
functioning of
the site that is
relevant
reg 47(1)(b) applies to such other
plans and projects. This means that
master plans and development briefs
affecting European sites will require to
be assessed.
Lawyer input
At a practical level, it is somewhat
easier to assess the effects of a project
or development on a European
site than those of a “plan”. That
is because plans are by their
nature conceptual and the
level of detail required to
make an informed
assessment may be
difficult to obtain. SNH’s
Guidance helpfully
illustrates a 13-stage
appraisal process. The
stages on which legal advice
may be required are stages 57, which relate to screening the
plan for its potential effects on a
European site. Only those aspects of
the plan that are likely to have a
significant effect on a European site,
either alone or in combination with
other aspects, require to be appraised.
The difficulty for the appraiser is the
interpretation of a “likely significant
effect”. A likely effect is one that
cannot be ruled out on the basis of
objective information. Although
“likely” would imply an effect that
is probable or might well happen,
in Waddenzee (ECJC-127/02) the
European Court ruled that a project
should be the subject of an
appropriate assessment “if it cannot
be excluded, on the basis of objective
information that it will have a
significant effect on the site either
individually or in combination with
other plans and projects”. Where a
plan or project might undermine
European sites, the effects must be
considered to be significant. It is the
potential effect on the ecological
functioning of the site that is relevant.
Stages 8-9 relate to an “appropriate
assessment” of the implications for
the European site in view of its
conservation objectives under the
regulations. Consultation with SNH is
mandatory, and where following that
assessment the competent authority
cannot conclude that the plan will not
adversely affect the integrity of the
European site, it may not be adopted.
That is because to do so the plan
would have to meet the extremely
high test of there being no alternative
solutions and for reasons of
overriding public interest.
Alastair McKie, Partner,
Anderson Strathern LLP
Professional briefing Sport
A new Scottish case decided by the Court of Arbitration
for Sport in Lausanne shows the benefits of that body
Forum at
the frontiers
With the mobility of sports men
and women continuing to create
opportunities for them, and for sports
clubs and leagues, a recent case
highlights some advantages of the
Court of Arbitration for Sport.
On 10 August 2007, Marius
Niculae, a Romanian international
football player, signed a two-year
employment contract with Inverness
Caledonian Thistle FC. The contract,
which was in standard SPL form and
governed by Scottish law, provided:
“Transfer to another club – 30% of
transfer fee received
In the event that during the Term of
this Contract the Player’s registration
is transferred to another football club
the Player shall, subject to such
transfer having been initiated by the
Club, be entitled to a payment from
the Club equivalent to the above
percentage”.
Clauses such as this are common in
employment contracts between
players and clubs.
The dispute
The player was transferred from
Inverness to Dinamo Bucharest
on 1 August 2008 for a fee
of 500,000 euro. The
circumstances leading
to that transfer were
disputed between
the player and
the club.
The player
insisted that the
club had initiated the
transfer, as a result, among other
things, of financial circumstances.
The club maintained that they had
the player included in their budget,
had not been actively engaged in
marketing the player and had not
initiated the transfer.
The player sought his share of
Through CAS,
the club has
resolved what
may have been
a very complex
international
dispute
the transfer fee before the FIFA
Dispute Resolution Chamber (DRC),
which has jurisdiction in disputes of
an international nature between
parties subject to FIFA’s regulations.
The DRC found that the club was
obliged to pay a share of the transfer
fee, on the basis that it had failed to
prove that it had not initiated the
transfer.
Appeal to the CAS
The Court of Arbitration (CAS) for
Sport is a private legal institution
created in 1983. The rules of FIFA
provide that parties have the right to
appeal a decision of the DRC to CAS,
which the club did in March 2010.
Following an abbreviated procedure,
the CAS decided that they would
hear the parties (some cases are
completed on submissions alone),
and that Scottish law
applied.
The hearing took place
in Lausanne in August
2010 before three
experienced sports
lawyers (one chosen by
each party; the
president by CAS),
none of whom
were Scottish. The
club was
represented by
senior officials
and a solicitor.
The player, who
had been
represented during the
proceedings, chose not to
attend. On 10 December
2010 the panel upheld the
club’s appeal, overturned
the DRC decision and
ordered the player to pay
the club’s costs.
The panel construed the
contract in accordance with
Scottish law, finding the condition
precedent to mean that the club
had to be the party who began, set
going or originated the transfer
process in order for the player to be
entitled to a share of the transfer fee.
CAS found that the burden of proving
who had initiated the transfer fell on
the player, who had failed to
discharge that burden.
International advantages
The case is a useful illustration of
some of the advantages of using CAS
in international disputes:
Speed. The proceedings before
CAS were initiated in March and a
decision issued in December. This is
longer than the average CAS case, but
still comparatively quick.
Internationally recognised
decision. Awards by CAS are arbitral
awards for the purposes of the New
York Convention. In most cases,
enforcement will require a fairly
straightforward claim in local courts
– more attractive to a club such as
Inverness than litigating at first
instance in Romania. Further, in this
case the decision of CAS is
enforceable through FIFA.
Application of Scots law. During
the proceedings, CAS invited detailed
submissions on the applicable law
and its content. A written submission
on the content of applicable Scottish
law was accepted by CAS, without the
need for the cost of an expert witness.
CAS quoted from Scottish authorities
in their decision, cross referenced to
other CAS decisions. The result is a
developing European sports
jurisprudence. Importantly, more of
that jurisprudence is becoming
available on the CAS website.
Integrity of the decision-making
process. The fact that the player did
not attend the hearing did not
disturb the process. The panel sent a
recording of the hearing to the player
with some information submitted at
the hearing and sought final
submissions from him.
Through CAS, the club has
resolved what may have been a very
complex international dispute, with
difficult issues around jurisdiction,
language and enforceability. The
jurisdiction of CAS, and other
sports dispute resolution bodies such
as Sports Resolutions in the UK,
should be borne in mind in
appropriate cases.
Michael Nicholson, Harper Macleod
LLP. Michael Nicholson and Rod
McKenzie of Harper Macleod
represented the club
Professional briefing Websites
It’s now 2011, and what better way to mark it than by
drawing your attention to 11 Scots blawggers worth
keeping an eye on this year...
Who writes
this column?
Alistair Sloan
scotslaw.wordpress.com
Now it’s the turn of the law students.
Alistair Sloan’s “Ramblings of a
Scottish Student” has been going for
a while and contains interesting
observations on various legal topics.
He has spent some time considering
the Cadder case and even contacted
various MSPs – the responses are all
posted on the site. Added extras:
lifeofascotslawstudent.wordpress.com
which chronicles more of the day-today experiences of student life (lately,
getting to exams in the snow).
The website review
column is written by
Iain A Nisbet of Govan
Law Centre
All of these links
and hundreds more
can be found at
www.absolvitor.com .
Absolvitor is also now
on Facebook:
http://bit.ly/absolvitor
and twitter:
twitter.com/absolvitor
Michelle McIlroy
legaleaglemhm.wordpress.com
The Eagle has landed, and Michelle’s
diary of a Diploma student is a
marvellously enthusiastic account of
what she and her fellow students are
undertaking. Weekly updates on the
course content and experiences will be
of most interest to other students or
prospective students, but also potential
employers who want to know how
things have changed since their day.
Michelle is evangelical about the use of
technology in legal practice and this
blog is a very good example of that.
Added extras: A year in pictures
contains some excellent photographs.
Eleven for 11
Jonathan Mitchell QC
www.jonathanmitchell.info
There’s no better place to start. If you’re
looking for serious commentary on
Scots law issues, this site has it in
abundance. Jonathan’s blog posts often
read more like academic papers or
written submissions than the
inconsequential linking or cutting and
pasting that often passes for legal
blogging. The subject matter is wideranging, recent posts including
comments on defamation, legal aid,
public law, human rights, the Upper
Tribunal and judicial review. Posts are
not frequent – only 10 in 2010 (to midDecember), but are always worth
waiting for. Added extras: Court of
Session term dates; Murray Stable
events; some other legal events; and
links to Jonathan’s old site, still very
much worth a look.
Professor Hector MacQueen
www.law.ed.ac.uk/sln/
Aided ably by Scott Wortley, Professor
MacQueen was blawgging before
blawgs were a twinkle in a web
developer’s eye. This review has
previously given high praise to Scots
Law News, but let me reiterate that it is
a very useful source. Short reports on
noteworthy events related to Scots law
appear relatively frequently,
accompanied by some brief analysis.
Added extras: A twitter feed
(@ScotsLawNews)
Andres Guadamuz
www.technollama.com
Another blog written from Edinburgh
University law school (though Andres
asserts that the online persona Techno
Llama is “semi-detached” from his
professional identity). A technology
law blog, it focuses on “open licensing,
digital rights, software protection,
virtual worlds, and llamas”. It’s a
compelling mix and although the tone
is lighthearted, the site is very well
respected, with some real rigour in its
treatment of the many complex legal
issues arising in cyberspace. Posts are
frequent, engaging and informative.
Added extras: A link to the llama song
(www.albinoblacksheep.com/
flash/llama)!
Professor Lilian Edwards
blogscript.blogspot.com
Another “cyberlaw” blog from another
academic, this time from the University
of Strathclyde. I am a newcomer to the
panGloss blog, but very much liked
what I found. Quite a mixed bag,
with recent posts including serious
commentary on the Wikileaks saga and
some fascinating thoughts on robot
ethics. Posts averaged a little more than
one per week in 2010.
Jennie
Jennielaw.blogspot.com
Jennie is a law librarian (or “library
monkey” as she describes herself) in
an Edinburgh law firm and blogs
periodically on germane issues. The
content is a mix of personal reflection,
anecdotes, insights and complaints –
in fact, it is perhaps the most “bloggy”
of all the blawgs featured this month
and it’s this quality that makes it
so engaging.
Fiona
divorcesurvivor-fiona.blogspot.com
Divorce and family law in Scotland is
the topic of this blog, written by a nonlawyer who is not really called Fiona.
She does meet her stated aim of
demystifying the law in this area, but
has not posted since 1 October 2009.
Come back, Fiona!
The Scots Law Student
www.scotslawstudent.com
An anonymous Scots law student,
whose blog is subtitled “life and trials
of learning law in Scotland” – with a
nice line in righteous indignation.
Gavin Ward
www.wardblawg.com
Gavin’s eponymous site has gone from
a standing start to a “big presence” in a
short period of time. Perhaps this is no
surprise as his student dissertation is
republished under the heading “How
to dominate the Internet”. He has also
published a guide on how to write a
first class dissertation. Beyond this, the
posts are not very frequent and you do
sometimes have to plough through a
lot of adverts to find what you want.
Added extras: YouBlawG; MusicBlawG;
EuroBlawG etc etc.
Absolvitor
www.absolvitor.com
As for number 11 on your list of
blawgs to bookmark, don’t forget
that absolvitor.com is also a blawg,
although without the insight,
analysis, charm or novelty of
those listed above.
Professional briefing Book reviews
Developing Resilience
The Key to Professional Success
Fiona Westwood
PUBLISHER: MATADOR/TROUBADOR
ISBN: 9781848764323
PRICE: £24.99
“Developing Resilience is designed to
help good professionals who want to
do the best job they can for their
clients and care about the quality of
the services they deliver. It provides
them with practical support to get
through what is sometimes the hard
slog of professional practice. It details
what actions they need to take at each
stage of their career to build their
personal resilience.
“It offers leaders and senior
managers help with creating and
maintaining a culture that allows
good professionals to self-manage,
enabling them to concentrate
their efforts on dealing with
underperformers. It also allows
people to get the maximum value out
of work-based learning and develop
the long-term resilience of their
organisations.”
This quote is from the back cover
of Fiona Westwood’s third book. It
certainly does what it says on the tin.
This is a well-timed book – following
up her earlier publications Achieving
Best Practice and Accelerated Best
Practice – and in the current
turbulence in the legal profession,
both in relation to the external
economic environment and the
changes within practices, it is right to
focus on resilience as the key to
survival and success.
Fiona Westwood’s credentials are
unimpeachable and in this very
readable book, which extends to
just under 150 pages, she identifies
lessons for all professions and
professional service firms. There are
messages for individual solicitors,
large firms, small firms, professional
educators and professional bodies.
I have a theory that most
management books these days have
perhaps 80 pages of good content in
them, padded out to 250/300 pages
with advertorials and case studies. This
book remains lean and mean and is
essential reading for any Scottish
lawyer who takes his or her
professional development seriously. It
also avoids another offputting feature
of management books – jargon.
Sadly there is a culture in our
profession in Scotland which says
management books are only for big
firms. Not so. It is the high street,
constantly traduced by many and
under threat, which needs to take on
these messages.
Chapter 8 has messages for
professional educators. The author
touches on the unsustainable divide
in a small jurisdiction between the
academic lawyer and the practising
lawyer. There is little sign of this
barrier of mutual disrespect in other
similar jurisdictions such as Australia
and Canada. We in Scotland have very
few people whose credibility bridges
the gulf – Professors Reid, Gretton,
Barr and Rennie being among the
exceptions that prove this sad rule. It
is particularly important in this era of
recession and significant and
structural change in legal education
that dialogue leads to understanding.
The book is interesting in its return
to the concept of “craft”, an era where
the profession seems to be rushing
towards demystification and process.
It identifies three stages in the
professional evolution from novice to
journeyman to master, and at a time
when many question whether or not
they should be a solicitor at all, its
faith in professionalism, and indeed
the author’s commitment and
idealism for the profession in which
she operates, shine through.
At a time when the profession is
still trying to adjust to a new
equilibrium point between the
demand for its services and its ability
to supply them, competent and
visionary management will be the
determining factor for success. It is for
that reason that I recommend that
everyone reading this review set aside
£24.99 and four hours of their time
to take on board the messages this
book contains.
Douglas Mill, Director of
Professional Legal Practice, School
of Law, University of Glasgow
Suggestions
for future
books
The Book Review
Editor is David J
Dickson. Books for
review should be sent
c/o The Law Society
of Scotland, 26
Drumsheugh Gardens,
Edinburgh EH3 7YR
This book
remains lean
and mean and
is essential
reading for any
Scottish lawyer
who takes his or
her professional
development
seriously
Professional briefing Book reviews
Drafting
commercial
agreements
Richard Christou
PUBLISHER: SWEET & MAXWELL,
ISBN: 9781847036100
PRICE: £188.24 (WITH CD, INC VAT)
The fact that this is the fourth
edition of this book is testimony to
its usefulness to the profession. It is
well written with a comprehensive
bank of precedents in both paper
and electronic format that suit
most circumstances that a business
lawyer might encounter in practice.
There is also an excellent table of
cases along with a table of
legislation, both primary and
secondary.
The stated aim of this book is
to provide, in one volume, all the
essential precedents (together
with the accompanying legal
commentary and explanation)
for the various commercial
relationships that a business
lawyer is likely to meet. I am
pleased to say that this not
inconsiderable objective has been
achieved during a period when
there have been a number
of legislative and other
developments, not least in the
fields of consumer contracts,
employment law and freedom
of information etc.
Part I contains an excellent
analysis of the Unfair Contract
Terms Act 1977, set against the
backdrop of a review of the basic
principles on which the law has
developed. Chapter 2 reviews
standard conditions and what has
come to be known as “the battle
of the forms”. There are a number
of useful precedents in this
section, e.g. standard conditions
for the sale of secondhand goods
(precedent 2.4). Precedent 3.2 is
also very useful – standard
conditions for the supply of
consultancy and testing services.
Clause 2.1 deals with the battle
of the forms by requiring the
customer to sign a duplicate of
the proposal and return it by way
of an unqualified acceptance in
order to create the contract
between the parties.
Chapter 1, 8.6 deals in some
detail with the EU Electronic
Commerce Directive, which is
designed to provide a framework
for the way in which services are
provided over the internet. This
directive is of importance in a
number of areas of law, not least in
the field of conveyancing where
electronic missives will soon
be a reality.
Part II deals with the subject of
agency and distribution and the
important backdrop of EU law.
There are a number of very useful
precedents of both short and long
form agency agreements –
precedents 7.1 and 7.2.
Part III deals with mergers and
acquisitions, following the same
style of describing the basic
principles before outlining certain
core styles, e.g. a short form
disclosure letter (precedent 10.3).
There is also a useful style of
business transfer agreement
(precedent 11.1).
Among other matters dealt
with are joint ventures (chapter
12); confidentiality agreements
(chapter 13), especially the
analysis of the so-called
“springboard doctrine” at para
13.4; and employment contracts
(chapter 14). The latter is, of
course, a huge subject. Chapter 15
deals with collaboration
agreements, which are described
as “teaming agreements”. The
author distinguishes these from
joint ventures or partnerships in
that they are entered into for a
limited period of time and for a
restricted and well defined
purpose. It is an interesting
distinction to have made.
Under the heading “Securities
for Debts”, chapter 16 contains
various precedents for retention
of title clauses. Chapter 17 deals
with dispute resolution and
settlement agreements, and
provides useful precedents that
can be used to record and
implement an agreed settlement.
Finally, chapter 18 provides
commentary on technology
licensing agreements against the
backdrop of EC competition law.
I found this book to be as good
as, if not better than, other similar
publications which I have
encountered in recent years. The
background notes provide context
for the precedents and should help
practitioners gain a better
understanding of the law before
using a particular precedent. That
is an essential step which can often
be overlooked in the rush to find a
suitable style to use in a particular
transaction. It is a very useful book
which, although lengthy, is clearly
set out and is easy to read.
Professor Stewart Brymer WS,
Brymer Legal Ltd
The New Law of Sexual Offences in Scotland
James Chalmers
PUBLISHER: W GREEN
ISBN: 9780414041271
PRICE: £55
This standalone text, Supplement
1 to Volume II of Gordon’s
Criminal Law, guides the reader
through the labyrinthine
provisions of the Sexual Offences
(Scotland) Act 2009 which, as
the author notes, “creates an
entirely new law of sexual
offences for Scotland, with
some exceptions”.
The text first considers the
general part of the Act, with
issues such as consent and a
definition of “free agreement”,
uncertainty as to age, and
extraterritiorial jurisdiction.
Thereafter Dr Chalmers provides
practitioners with a clear,
straightforward analysis of the
recommendations of the
Scottish Law Commission, the
offence, the modified offence in
respect of older and younger
children, then the elements of
the offence. There is critical
analysis of the offences, with
interpretative guidance sought
from pre-existing Scottish
authority but more often than
not from the English courts’
interpretation of the Sexual
Offences Act 2003. This book
is, along with Dr Brown’s
previously reviewed annotated
statute, a “must have” for all
practitioners who will require to
be familiar with the soon to be
introduced legislation.
David J Dickson,
Solicitor Advocate
Property Real burdens
Signs of the times
A recent sheriff
court decision has
highlighted the
complexity of the
current law on
enforcement of real
burdens, particularly
by someone other
than a proprietor.
Eric Baijal explains
Given that in the lead-up to the
“appointed day” practitioners were
told “things would never be the same
again”, it should really have come
as no surprise when numerous
litigations started to arise from the
Title Conditions (Scotland) Act 2003.
Numbers of cases are increasing, but
judicial guidance on critical issues is
still very limited.
Since the 2003 Act came into force,
it has no longer been enough for real
burdens to be valid (in the sense they
are properly constituted and not
repugnant with ownership). The
party attempting to enforce the
burden must have title and interest to
enforce a particular burden. Barker v
Lewis 2008 SLT (Sh Ct) 17 is, of
course, the leading case on interest to
enforce a real burden under the 2003
Act. In that case, several proprietors
in a rural steading development
attempted to stop a fellow proprietor
from operating a bed & breakfast
business, on the basis that the
property was burdened to the effect
that a business could not be operated
from it. Ultimately their attempt
failed, the sheriff principal ruling that
the operation of the business did not
result in material detriment to the
pursuers’ use or enjoyment of their
property.
Strathclyde Business Park
(Management) Ltd v BAE Systems Pension
Funds Trustees Ltd, Hamilton Sheriff
Court, 14 September 2010, unreported,
Property Real burdens
is less colourful than a case involving the
antics of foreign tourists at a bed &
breakfast. However, it is effectively the
next in the line of cases where an
attempt is being made to enforce a title
condition which is ex facie valid, but
where again issues have arisen about the
measurement of title and interest to
enforce it. In this decision of Temporary
Sheriff Principal Stoddart, we also have a
fresh analysis of the 2003 Act, which the
courts seem generally to be finding
challenging to interpret.
Background
In Strathclyde Business Park, the
pursuers were the “promoter”
(importantly not the owners) of
the business park. They raised an
action for interdict and declarator
in Hamilton Sheriff Court. In
broad terms, they argued that the
defenders, who were tenants in the
business park, were in breach of
clause 11 of the deed of conditions
applying to the development,
registered on 29 July 1991.
Clause 11 provided: “No
proprietor shall be permitted,
without obtaining the prior
written consent of the
promoter (which consent
shall not be unreasonably
withheld or delayed) to erect
upon the site including any
building thereon, any signs,
logos, devices, advertisements,
notices or others.”
At first instance, the sheriff
granted an interdict prohibiting the
defenders from erecting signage. They
appealed to the sheriff principal,
arguing that (1) the pursuers had no
title to sue as promoter of the business
park; (2) the pursuers had no interest
to enforce the burden in terms of s 8
of the 2003 Act; and (3) the pursuers
had averred no prima facie case
otherwise, in any event.
Title to sue
The pursuers argued that they were
entitled to enforce the real burden,
given they were promoter of the
business park in terms of the deed.
That right, they said, arose implicitly.
They pointed out that in terms of
s 25 of the Act, this burden was a
“community burden” because the
same burdens applied to each property
in the business park so that each
property was both benefited and
burdened. Reference was then made to
the fact that in terms of s 28, owners in
a community could appoint a
manager who would be empowered to
enforce title conditions such as the one
in question. The pursuers appear to
have argued that the owners had
implicitly delegated the power to
enforce to the promoter.
The pursuers had an esto case to
the effect that they were entitled to
enforce as agent for the proprietor.
Although not directly related to
the 2003 Act, the sheriff principal
expressed doubt about pleading an
alternative title to sue as the pursuers
had done here.
Despite the arguments about
implicit creation of enforcement
rights, which are certainly novel to the
author, the sheriff principal held in
clear terms that no implied right to
enforce had been created. The sheriff
principal, in the author’s opinion
correctly, held that if there are no
delegated enforcement rights in the
deed of conditions, they have to be
conferred by a majority of owners in
the community (2003 Act, ss 26, 28).
That had not happened in this case. In
the circumstances, it was not open to
the promoter to claim that somehow
enforcement rights had implicitly
mentioned in the report and the
author therefore assumes there was
little in-depth debate on the point: it is
impossible to say with any certainty
without findings in fact, but if the ratio
in Barker was followed, it again seems
unlikely that interdict would have been
granted). However, he seems to have
accepted much of the defenders’
argument. This focused on the fact that
the pursuers had made no averments
about their interests and the interests of
the proprietors, and how these were
affected by the alleged breach of the
condition. In these circumstances,
extraordinary remedies should not be
granted. The sheriff principal agreed,
saying: “I think this is a fundamental
point; it is completely unclear whether
their interest is one which is protected
by s 8(3). Nor can it be assumed that
[the proprietors’] interest coincides
with any the respondents may have.”
He therefore held that it could not
be said there was a prima facie case of
“material interest” to enforce the
condition. Again, this respectfully
seems to the author to be the sensible
conclusion to reach.
The pursuers argued that
they were entitled to enforce
the real burden, given they
were promoter of the business
park in terms of the deed
arisen. It was clear that appointment,
and therefore delegation of powers,
had to be express.
The sheriff principal held, however,
that it could conceivably
be competent for the pursuers to be
entitled to sue as agents of the
proprietor. Their averments on this
issue made their claim to have title to
sue statable.
Material interest
In terms of s 8 of the Act, a party
requires to have both title and interest
to enforce a real burden. Section 8(3)
defines interest as follows: “A person
has such interest if… in the
circumstances of any case, failure to
comply with the real burden is
resulting in, or will result in, material
detriment to the value or enjoyment
of the person’s ownership of, or right
in, the benefited property.”
For reasons addressed below, the
sheriff principal did not require to look
at interest to enforce in any depth
(interestingly Barker v Lewis is not
Having reached this conclusion, the
sheriff principal did not have to look
at the question of material interest in
any great depth.
Enforceability
A separate question arose as to
whether the provision in clause 11 on
which the pursuers sought to rely
required to be disregarded.
Apparently the sheriff had been
referred to s 73(2A) of the Abolition
of Feudal Tenure (Scotland) Act 2000,
but made no mention of it in his
note. That section provides (as read
short by the sheriff principal): “In
construing, after the appointed day
and in relation to a right enforceable
on or after that day, a document…
which (a) sets out the terms of a real
burden…, any provision of the
document… to the effect that a
person other than the person entitled
to enforce the burden may waive
compliance with, or mitigate or
otherwise vary a condition of, the
burden shall be disregarded.”
The defenders argued that the effect
of the section here was to render the
burden unenforceable. Parliament
had decided that it was a holder
of a title condition (s 3(8) of the
2003 Act sets out the position for
new burdens) that had the right to
waive compliance. Here the right
was purportedly delegated to the
promoter, and that was not
acceptable in terms of s 73(2A).
The pursuers argued they still had a
prima facie case under this head. First,
they claimed that, properly construed,
the clause did not necessarily have the
effect of allowing the promoter to
waive or mitigate the burden.
Secondly, they argued that Parliament
had not intended to cut down
existing burdens, and in any case this
particular condition reflected only
one of a series of delegated
management powers. Lastly, the
pursuers appear to have advanced
an argument to the effect that to
construe s 73(2A) as the defenders
had done would be to undermine
Parliament’s purpose in relation to
community burdens.
The sheriff principal rejected the
pursuers’ arguments. He held that
the wording of the condition was
unambiguous and did attempt to
allow the promoter to waive or vary
the condition. He further held that
s 73(2A) did catch burdens created
before the appointed day and noted
that the pursuers seemed to have no
answer to that. In the author’s
opinion, that view must be correct.
Section 73(2A) appears to mirror
s 3(8) of the 2003 Act in relation to
pre-28 November 2004 burdens,
and this particular condition seems
clear in its terms.
Complex questions
In the event, the sheriff principal
allowed the appeal, having been
satisfied that there was no prima facie
case. The legal principles appear
straightforward in hindsight. However,
their application is extremely
challenging. The fact that the case
made it to the sheriff principal reflects
the continuing unease caused by, and
the complexity found in, the 2000 and
2003 Acts. There are particular lessons
to note. Managers must be appointed
expressly. If a waiver provision is
contained in a burden, then perhaps
community variation (see for example
s 33 of the 2003 Act) should be
considered (property lawyers acting
for those purchasing similar
developments with such conditions
should give serious consideration to
advising on variation if their clients are
going to be without practical means of
enforcement). If enforcement
remedies are being considered, this
case emphasises that specific and
relevant allegations will have to be
pled; the days of pointing to a valid
condition and a breach seem to
be over.
More generally, the profession is
still left with questions about advising
on real burdens. The writer is
admittedly a litigator, but assumes that
conveyancers must find themselves in
an almost impossible position.
The ratio of Barker seems to be that,
given that “material” has to be given its
ordinary meaning (perhaps in this
context, “significant” or “objectively
important”), one can only judge the
enforceability of a real burden on a
case by case, circumstance by
circumstance basis. There is no further
guidance on the meaning of “material
interest” here. The profession is
therefore left with a situation where
not only is it complex to advise on
whether a burden is valid (in the sense
that the 2000 Act cuts through many
burdens with the abolition of
superiorities), but it is even more
difficult to say with any certainty
whether a burden can practically
be enforced.
In this case, it seems reasonable that
a business park manager can control
the amenity and environment of the
site; however, it appears that in this
situation that may have to be done
contractually as opposed to control by
title condition.
This case serves the profession with
a reminder of a difficult set of statutes,
which require to be read and
understood. Meanwhile, it is left hoping
for some further judicial guidance on
when and where enforcement of real
burdens can be effected.
Eric Baijal is a partner in
BBM Solicitors, Wick.
This case serves the profession
with a reminder of a difficult
set of statutes, which require
to be read and understood
Registers
of Scotland
Turnaround times as
at 11 December 2010
The Keeper’s turnaround targets for
2010-2011, endorsed by Scottish
Ministers, have been informed by
the outcome from our most recent
customer survey, where our
customers have indicated that
undertaking first registration work
more quickly is their highest priority.
The targets and performance are
as follows:
Where it is in the Keeper’s power and is legally appropriate:
Target: To complete the registration of sasines writs within an
upper limit of 40 days. 80% will be completed within 20 days.
35,127 sasine writs received since 1 April 2010
33,439 sasine writs or 95.2% despatched within
20 working days
20 sasine writs or less than 0.1% despatched between
21 and 40 working days
1,668 sasine writs or 4.7% are currently in the arrear.
No sasine writs despatched in more than 40 days.
Target: To complete the registration of dealings with
whole carried out as ARTL transactions within 24 hours.
Of the 10,135 dealings with whole carried out as
ARTL transactions, 10,118 or 99.8% were
completed within 24 hours.
Target: To complete the registration of dealings with whole that
are not carried out as ARTL transactions, and standard first
registrations, within an upper limit of 120 days. 80% will be
completed within 60 days.
119,430 standard first registrations and dealings with whole
not carried out as ARTL transactions received since
1 April 2010
not carried out as ARTL transactions, or 76.7%, despatched
within 60 working days
397 dealings with whole not carried out as ARTL
transactions, and 244 standard first registrations,
or 0.5%, despatched within 61 to 120 working days
No dealings with whole or standard first registrations
completed in more than 120 working days
not carried out as ARTL transactions, or 22.8%, are in the arrear.
People
ABERDEIN CONSIDINE &
COMPANY, Aberdeen, is pleased
to announce a number of
promotions in its legal and
property divisions, effective
1 January 2011. Ritchie Forbes
Whyte and Ryan Daniel McKay
have been promoted to partner,
with Ritchie specialising in
Corporate & Commercial and
Ryan in Litigation. Meanwhile,
Laura Youngson, a specialist in
Private Client, and Sally-Anne
Ogilvie, our Employment Law
specialist, have been made
associates.
Andrew Bird is delighted to
announce that BICYCLE
ACCIDENT LAW opened for
business on 19 November 2010.
BICYCLE ACCIDENT LAW is
Scotland’s first and only firm
working exclusively for cyclists
involved in accidents in Scotland,
England and Wales. Andrew is
the firm’s principal.
HBM SAYERS, Glasgow and
Edinburgh is delighted to
announce that Andrew Gilmour
became a partner of the firm on
Onthemove
Gail C Jamieson (right) has
joined Macleod & MacCallum as
head of the Rural Land department
alongside David
Findlay and
Eilidh Ross
fyi
Send your
the
photographs for
:
people section to
t
ec
nn
co
peter@
.co.uk
communications
1 December 2010 and Ann
Bonomy, Iain Buchanan, Colette
Finnieston and Catriona Maclean
all became associates on the
same date. Lorna Gibb also
joined the firm as a senior
associate on 18 October 2010.
ALEXIS HUNTER FAMILY LAW,
Shawlands, has moved office.
Our new address is Cartside
House, 1/7 Clarkston Road,
Cathcart, Glasgow G44 4EF.
All other contact details remain
the same.
department. Gail joins the
existing team of David Findlay
and Eilidh Ross.
MORTON FRASER, Edinburgh,
Glasgow and London intimate
that after 12 years in post, Bruce
Wood, the firm’s current
Chairman, is stepping down to
focus on his leading UK Asset
Finance practice and on
developing the firm’s
international relationships
through the global legal
association,
LOW BEATON RICHMOND LLP,
Glasgow and Largs, is pleased
to announce the appointment of
J Scot Dickson as an associate,
based in the Dumbarton Road,
Glasgow office, with effect from
1 December 2010.
MACLEOD & MACCALLUM,
Inverness, is pleased to announce
that Gail C Jamieson has joined
the firm as an associate to head
up the firm’s Rural Land
From top: Aberdein
Considine’s Whyte,
Youngson, McKay,
Ogilvie
People
Intimations
for the people
section should
be sent to:
Denise Robertson,
Registrar’s Dept.,
The Law Society
of Scotland,
26 Drumsheugh
Gardens,
Edinburgh EH3 7YR
Email:
deniserobertson@
lawscot.org.uk
INTERLAW. Linda Urquhart,
who has been the firm’s Chief
Executive for the last 11 years,
has been elected Chairman.
Brian Dempsey’s monthly survey of consultations
that might be of interest to practitioners
...the point is to change it
Amending the planning system
Is the “modernised planning system” operating
efficiently, or are there refinements and
amendments that should be made to the
procedures in relation to development planning,
development management and appeals?
See www.scotland.gov.uk/
Resource/Doc/327737/0105889.pdf
Respond by 28 January to
The bill would, among other things, give local
authorities greater powers to recover costs
where they act to repair dangerous or
defective buildings, and require owners of
buildings to secure regular certificates of
inspection for their properties. See the
consultation document Keeping Scotland Safe at
www.scottish.parliament.uk/s3/
bills/MembersBills/documents/BuildingRepairs
ConsultationPaperFinal.pdf
[email protected]
MORWOOD & CO, 33 Cadzow
Street, Hamilton is delighted to
announce the retiral of Alan
Morwood from practice with
effect from 30 November 2010.
MORWOOD & CO’s ongoing and
future business will be undertaken
by T J & W A DYKES, 5 Church
Street, Hamilton ML3 6BA
(tel 01698 282726; email
[email protected]).
STODARTS, Hamilton is
pleased to announce that
Ruth Margaret McCall has been
assumed as a partner with effect
from 1 September 2010.
STURROCK, ARMSTRONG &
THOMSON, Edinburgh, is
pleased to announce that, with
effect from 3 December 2010,
Michael Anderson has joined the
firm as an associate. Michael is
based at the office at 7A Dundas
Street (tel 0131 556 0159).
Respond by 11 March to
Social responsibility levy
The Scottish Government seeks views on
its plans for the social responsibility levy as
provided for in ss 10 and 11 of the Alcohol etc
(Scotland) Bill. The levy may be imposed on
holders of premises licences and occasional
licences where the sale of alcohol is a significant
part of the business in order to “meet or
contribute to expenditure incurred by any local
authority in furtherance of the licensing
objectives”, such as preventing crime and
disorder and protecting public health, where
those objectives are undermined by the sale
of alcohol in the area.
See www.scotland.gov.uk/Resource/
Doc/330005/0106982.pdf
Respond by 28 February to
[email protected]
Compulsory building repairs
David Stewart, Labour list MSP for the
Highlands and Islands, seeks views on his
proposed Building Repairs (Scotland) Bill.
[email protected]
Title to moveables
The Scottish Law Commission has issued a
discussion paper (no 144) on Prescription and
Title to Moveable Property. Seen as less
important than negative prescription of
obligations or prescription in relation to land,
the SLC fear that the current gaps in our legal
framework may become more problematic if we
follow the American lead, where litigation on
this issue is apparently widespread.
See the paper via www.scotlawcom.gov.uk/
consultations/
Respond by 11 March to [email protected]
And briefly…
As noted last month, Trish Godman MSP is
consulting on her Criminalisation of the Purchase
and Sale of Sex (Scotland) Bill.
Respond by 18 February to
[email protected]
From the Journal archives
50 years ago
From “Scottish Student Grants”,
January 1961: “Increased grants
will be paid to University
students and students taking
the equivalent of University
degree courses in Scotland
from October 1962.
A radically revised scale of
parental contributions is
intended to remove the
disparities which now exist
between students in Scotland
and those in England…
[The Secretary of State for
Scotland has announced that]
an interim improvement in
allowances would be made in
October 1961 in accordance
with the announcement made
by the Minister of Education on
1st December.”
25 years ago
From “Lawyers’ letters”, January
1986: “The advance of new
technology has revolutionised the
mechanics of conveying
information. But it leaves
untouched what is surely the
essence of the matter: the
temptation to confuse means with
ends. Communication is not
getting something out of your
head; it is getting it into someone
else’s. That is the real criterion. It is
now possible to transmit
information in 24 seconds instead
of 24 hours. The real value of this
technical achievement is nil if the
message is lacking in clarity.”
Sidelines Manus Straw
The impending demise of the Diploma
revives some memories for Manus Straw
How I learned to
love the law
Happy New Year, dear readers! With
the Diploma in Legal Practice in its
final year, and PEAT 1 about to roll
out later in 2011, I feel it’s finally safe
to share with you my memories of
that magical year which prepared me
for professional practice.
Following my graduation from the
LLB it took me a few years to return to
law school and complete my training.
In the interim I had acquired a house
and a mortgage, and there was no way
I was willing (or able) to quit my job.
My company had introduced flexitime, and I reckoned working full
time and attending the Diploma full
time would be easy. I would come
into my office at 7am, catch a bus to
the Diploma at 11am, bus back to the
office at 5pm, and work until 10pm.
At the end of week 1 I realised that
maintaining this schedule would
require a work ethic and ruthlessness
normally associated with only the
most elite of serial killers.
At the start of week 2 I was
introduced to the other three
members of my “firm” – the
group you are expected to
work with to complete
various pieces of team
coursework. I discovered
that you can choose
your friends, but you
can’t choose your firm.
To be fair, two of the
folk were nice, but the
third was an exceedingly
serious older lady who
had done exactly what I
hadn’t, and quit her job in
order to afford the Diploma
the necessary care and attention.
She was keen to arrange meetings to
agree phone calls to decide on
possible further meetings. I had no
time to even explain why I had no
time, and our relationship went
to pieces, just like my planned
work schedule.
I began to either completely miss
classes, or attend on a “last in, first
out” basis. Nevertheless, I started
noticing some characters. There was a
young gentleman who was better
looking than most of the ladies, and I
duly nicknamed him Hunky Harry.
There was also a girl who spent the
entire Diploma with her broken hand
in plaster. (Her apparently incurable
injury meant she was excused from all
sorts of things, including exams!
Perhaps she just honestly told them
that she was finding it hard to pick
things up.) Best of all there was a
chap who cut about in three-piece
suits and a very shiny briefcase. I was
delighted when Three-Piece Suit
befriended another similarly attired
chap about half his size, whom I
christened “Three-Piece Suit (fun size)”.
Most Diploma classes descended
into hopeless farce, usually whenever
any form of role play and/or
At the end
of week 1
I realised that
maintaining
this schedule
would require
a work
ethic and
ruthlessness
normally
associated
with only the
most elite of
serial killers
correlation with real legal life was
attempted. Civil Litigation was the
biggest circus of the lot. The tutor
bore an uncanny resemblance to
Ruby Wax and was much more
interested in talking about soap
operas than actually teaching any
court procedure. I was happy to play
along, asking her to clarify whether
Ken Barlow still wore jeans, or
whether Hollyoaks still had a generic
“Irate Scottish Dad” character.
“Ruby” would occasionally blunder
into teaching some law, but only
between bouts of flirting with Hunky
Harry. Three-Piece Suit fancied
himself as a high-flying litigator and
attempted every week to get a plum
part in the role play. Sadly, his
Achilles heel was that he couldn’t
string a single sentence together
in front of the class without
degenerating into a gibbering wreck.
Most tutors tolerated my
attendance technique, but the Private
Client tutor was having none of it,
and hauled me over the coals every
time I was late. My timekeeping
reached its nadir when I turned up
one day at 4.20. Not completely
disastrous, I thought, until I realised
on walking in that the class had
started at 3.
I found myself summoned for a
meeting with the two gentlemen who
administered the course. I prepared
myself for “Good Cop, Bad Cop”
tactics, but instead experienced an
innovative routine along the lines of
“Bad Cop, Even Worse Cop”. Bad Cop
suggested that someone of my socioeconomic background shouldn’t have
made it onto the Diploma (actual
quote: “Your parents aren’t
professionals”), while Even Worse
Cop spent most of the conversation
clearly raging that he was bound to
the disciplinary rules of the Law
Society, and not the World
Wrestling Federation.
Tempers frayed on all sides, and
somehow I stayed on the Diploma,
subject to passing a Private Client
exam. On attending I discovered that
two of the other four attendees were
from my class. That meant that more
people had failed my one class than
all the other 15 (or so) classes put
together. I was so pettily engaged in
making these calculations that I
almost forgot to fill in my IHT2000.
Did I do it correctly? Who knows?
Like virtually everything else on the
Diploma, I’ve never actually had to
put it into practice.
Manus Straw is the pen name of a
practising solicitor
Sidelines Books
Another round of suggestions for good leisure reading,
as chosen by David J Dickson, Tom Johnston and Fiona Kennedy
Reviewers’ choice
Lumen (Ben Pastor: Bitter Lemon Press:
£8.99: published January 2011)
This is a fast-paced, page-turning historical
thriller from an award-winning author of the
genre. Set in 1939 Krakow, the story follows
Wehrmacht Captain Bora investigating the
unexpected death of revered nun Mother
Kazimierza, who has been under inquiry by the
Pope's envoy for her power to foretell the future.
As the investigation progresses, the tensions
between the occupying forces and the Church
build against a brilliantly described background
where Bora investigates the ravages against
Polish farmers by advancing German troops, the
setting up of the Jewish Ghetto, partisan activity,
and the daily life of an occupied city. Cracking.
Medium Raw: A Bloody Valentine to the
World of Food and the People Who Cook
(Anthony Bourdain: Bloomsbury: £18.99)
From his position as a journeyman chef (with a
past), Bourdain changed his life by penning
Kitchen Confidential, a warts, blood, entrails and
all description of life in professional kitchens in
New York. That was described as “Elizabeth
David written by Quentin Tarantino”. This book is
inaccurately described as a sequel. This time the
influences include Dorothy Parker, S J Perelman
and Gordon Ramsay’s vocabulary coach. It is,
in fact, better described in its subtitle. Part
autobiography, part reflections on contemporary
attitudes to food, and part (highly) critical
appraisals of some of today’s leading chefs and
food critics, I find Bourdain’s honesty refreshing
in a field where the writing can often be as
pretentious as the food and as over inflated as
the diners. Others may find it distasteful. The 19
chapters take you round the world, will have you
laughing at some of his crusades, screaming in
fury at others, but will never leave you cold. The
angry young chef has become more mellow –
now merely medium raw.
Europe’s Decline and Fall
(Richard Youngs: Profile Books: £8.99)
This is a must-read for anyone with an interest in
the European project. Youngs’ premise is that
Europe needs to reassess what it stands for in the
global context and reposition itself. He provides
some radical suggestions for the reordered world
that lies ahead.
Phantoms on the Bookshelves
(Jacques Bonnet: Maclehose Press: £12)
Bonnet is a publisher, translator and reviewer,
amassing a library of several tens of thousands of
books. A book about books might appear
unappealing. Not so with this gem! Bonnet
simply, insightfully and beautifully describes the
sheer joy of books, from the famous libraries to
the pleasure and value of reading, to the future
of the “pound of paper”. Anyone who enjoys
reading (not just bookworms) will identify with
something here while realising there is more to
be gained. As Bonnet recorded: “There is
something intoxicating about opening a new
one.” Engrossing.
Edinburgh: A History of the City
(Michael Fry: Macmillan: £8.99)
This is a compelling book from first to last.
Edinburgh is set in its pivotal historical context.
The story moves on rapidly and lightly from
St Margaret, Robert the Bruce, Mary Queen of
Scots, to the more modern city of Miss Jean
Brodie and ultimately, Edinburgh as a financial
centre. Can we look forward to a similar text
on Glasgow?
Our Kind of Traitor
(John Le Carré: Penguin: £18.99)
Le Carré is on form with this story of money
laundering, political intrigue and corruption, set
against the background of the current financial
chaos. An uninspiring couple go on holiday and
fall into the uncompromising clutches of the
Russian mafia. There follows a brilliant
narrative as the action moves from London
to Switzerland under the guiding hand of
British intelligence. Excellent.
The Badness of King George
(Judith Summers: Penguin: £6.99)
This book is less about the badness of George, an
ageing cavalier King Charles spaniel, and more
about the utter madness of his owner, author
Judith Summers. Trying to stave off the effects of
empty nest syndrome, she discovers the Many
Tears Dog Rescue Centre and it’s fair to say that
life is never quite the same again. Dog lovers
will enjoy the anecdotal style. Anyone who
has ever been tempted to take in a stray or
visit their local dog pound should read this first
and take heed!
From the Journal
archives: see p57

Professional briefing

Transcription

Similar documents

FUNDRAISING Money Return Document

LANGS Presentation 10th June 2016 - Ann Robertson Chair

HEART ATTACK - KNOW THE SYMPTOMS Poster

History Quiz 6 - Answers

FURY erupted yesterday after it emerged an artist was given

Destination scotland

Peace of Mind Brochure - Social Services Knowledge Scotland

IV001C

Amendments to L. E. Kastner`s Edition of Drummond`s Poems