Professional briefing - The Journal Online

Vol 55 No 7 JULY 2010 www.journalonline.co.uk 

THE MEMBER MAGAZINE FOR THE LAW SOCIETY OF SCOTLAND 

Reach 

out 

Pro bono conference 

reveals momentum 

for joined-up 

approach 

State of 

the nation 

Property review surveys 

the market outlook 

The Bill, 

version 2 

Justice Committee gets 

to grips with details 

Bench marking 

JAB takes its message 

to the profession 

ALSO INSIDE: VIRTUAL PRACTICE / LICENSING / CHILD CRIME / SPSO / STUDENT ESSAY 

See the magazine online: www.journalonline.co.uk Online recruitment: www.lawscotjobs.co.uk

Contents Vol 55 No 7 July 2010 

Regular items 

4 Update 

Forthcoming CPD dates 

5 Editor 

6 People 

Firms and lawyers on the move 

7 President 

Plunging into work on Cadder 

8 Letters 

ARTL; return and recall orders 

10 Opinion 

Compulsory pro bono: yes-no 

28 Current consultations 

Topics that might be of interest 

30 Professional news: Society 

(More in the box below) 

33 Notifications 

Entrants to the profession 

34 Professional practice 

34 IT: virtual practice opens up 

36 Risk Management Roadshow 

38 Ask Ash 

39 Professional briefing 

39 Civil court 

42 Licensing 

43 Environment 

44 Insolvency 

45 Family 

46 Charities 

47 Discipline Tribunal 

48 Websites 

49 Book review 

50 In House 

Work of the SPSO 

52 Property lawyer 

Cross-sector property review 

58 Sidelines 

Abroad; Manus; Books extra; Six 

62 Classified 

63 Recruitment 

Contact 

Journal 

staff and 

contributors 

PUBLISHERS 

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Chief Executive: Lorna Jack 

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DISCLAIMERS 

The views expressed in the Journal 

of the Law Society of Scotland are 

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application for which should be 

made to the publisher. © The Law 

Society of Scotland, 2010 

ISSN: 0458-8711 

26 Do we need a law? 20 It looks different now 

Total Net 

Circulation: 10,833 

(issue specific May 09) 

Av. Net Circulation: 

10,712 (Jul 08-Jun 09) 

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www.lawscotjobs.co.uk 

52 Changeable outlook 

Features 

12 Joined-up approach 

Lord Advocate’s conference asks, 

what next for pro bono in Scotland? 

16 Career shift? 

Judicial Appointments Board takes 

to the road to highlight opportunity 

19 Money matters 

Registers of Scotland consults over 

increased fee levels 

20 Major surgery 

How the Legal Services (Scotland) 

Bill is shaping up after stage 2 

60 Holiday reading? 

www.journalonline.co.uk 

22 Branded for life 

Kenneth Norrie on why we need to 

reform the law on child offenders 

24 World apart 

A residence order separates a sister 

and brother: is it a new departure? 

26 Case for action 

Privacy is the winner’s subject in the 

Society/Parliament essay contest 

29 Open all hours? 

Tom Johnston believes there is no 

duty to trade in licensed premises 

Society news> 

Turn to pages 30-33 for Cadder talks; 

ethnic minority research; Dewar Debate 

final; law reform; will campaigns; Brussels 

update. Website: www.lawscot.org.uk. 

July 2010 theJournal / 3

CPD EVENTS 

Please view website for further details 

SEPTEMBER 

1 Licensing (Scotland) Act 2005 – Transition Day, One 

Year On – Edinburgh 

7 Management Series Roadshow – Aberdeen 

13 Stand and Deliver – Your Business or Your Life! – Edinburgh 

14 Management Series Roadshow – Glasgow 

14 Conveyancing Roadshow – Edinburgh 

16 Conveyancing Roadshow – Dundee 

16 Employment Law Conference – Stirling 

22 Management Series Roadshow – Dundee 

23 Conveyancing Roadshow – Aberdeen 

28 Conveyancing Roadshow – Inverness 

28 ILG Seminar – Legal Update 

tbc Written Pleadings – Edinburgh 

tbc Neuro-Linguistics Programming For Lawyers 

tbc Charity Law – Stirling 

tbc Planning for Partnership Succession & Retirement – Edinburgh 

tbc Private Client Conference 

tbc Legal Advice for Older Client 

tbc Manual Bookkeeping & Accounts Rules – Edinburgh 

tbc Corporate Homicide – Glasgow 

tbc Single Equality Act – Stirling 

OCTOBER 

1 Time Mastery for Lawyers – Frank Sanitate – Edinburgh 

14 The Law is IT – Glasgow 

18 EU Justice Day – Edinburgh 

25 Anti Money Laundering Roadshow – Dundee 

27 Conveyancing Roadshow – Glasgow 

28 Management Series Roadshow – Inverness 

29 ILG Annual Conference & Dinner – Edinburgh 

tbc Sexual Offences Act 

tbc Renewable Energy Conference – Glasgow 

tbc Domestic Conveyancing for Paralegals 

tbc Vulnerable Witness Roadshow 

tbc Managing a Business 

tbc Buying and Selling Rural Property 

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. 

tbc Agricultural & Rural Conference – Glasgow 

tbc Conveyancing Roadshow – Dumfries 

tbc Client Care & Client Relations Partners Roadshow – Perth, 

Edinburgh and Glasgow 

NOVEMBER 

1 Will Drafting Essentials – Dunblane 

3 Anti-Money Laundering Roadshow – Aberdeen 

5 & 6 Legal Aid Conference 

9 Management Series Roadshow – Dumfries 

12 & 13 New Partners Practice Management Course 

13 Leadership & Leaders of the future Management Workshops 

16 Management Series Roadshow – Edinburgh 

18 Anti Money Laundering Roadshow – Inverness 

23 Anti Money Laundering Roadshow – Edinburgh 

25 Anti Money Laundering Roadshow – Glasgow 

30 Anti Money Laundering Roadshow – Dumfries 

tbc Family Law Conference 

tbc Fraud Conference 

tbc Medical Negligence Conference 

tbc Construction Law 

tbc GP Forum 

tbc Advocacy Skills – Glasgow 

tbc Sole Practitioner Conference – Edinburgh 

tbc Mental Health & Incapacity 

tbc Contingency Planning 

tbc The High Street Practitioner Conference – Stirling 

tbc Dealing with the Media – Edinburgh 

Please visit our website for seminars details and future dates for 

CPD For New Lawyers.This series has been specifically designed for 

trainee solicitors with up to five years’ PQE. Courses are free of charge 

and held after hours. 

*ILG seminars are open only to In-house Lawyers Group members. 

Videolinks available to Aberdeen, Glasgow, Fort William, Inverness, Isle of 

Skye, Lerwick, Moray, Motherwell, Scottish Borders and Stornoway. 

Update Department,The Law Society of Scotland, 

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Legal Post, LP1 Edinburgh 1. 

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Telephone: 0131 226 7411 Fax: 0131 476 8118

ABS or no ABS, there remain plenty of 

talking points as the summer progresses 

After all the sound and fury in recent 

months over the Legal Services 

(Scotland) Bill, it feels good to have 

had a month without anguished 

debate over whether the professional 

world as we know it is about to end. 

Of course something had to fill the 

vacuum, and the ramifications of the 

Peter Cadder appeal to the Supreme 

Court over rights to a solicitor while 

in police detention have managed to 

keep quite a lot of people very busy 

this past few weeks. 

Despite optimistic noises from 

both the Society and Crown Office as 

talks began, as we go to press it 

appears unlikely that the points of 

difficulty where the Lord Advocate’s 

interim guidelines to chief constables 

meet the Society’s code of conduct for 

criminal work, are about to be 

resolved, so it is difficult to say 

anything definitive. However, it does 

cause me to wonder why such 

guidelines were devised internally 

within Government with the 

profession only being involved at a 

late stage, if at all. Similar comments 

apply to the associated legal aid 

changes. If the co-operation of 

solicitors is essential to make the 

system work, there must be a 

better way. 

Back on stage 

Headlines or no headlines, we do 

have to keep a close watch on the bill, 

which has gone through its stage 2 

committee sessions this past month: 

see the feature on p20 for the main 

topics discussed. Leaving aside the 

question whether to permit external 

ownership/investment to any degree 

(the minimum 51% ownership by 

regulated professionals has so far held 

sway), solicitors should be reasonably 

content with the outcome. 

The regulatory objectives have 

been strengthened; the role of the 

Lord President enhanced as a barrier 

between the profession and 

Government; non-lawyer will writers 

are to be regulated; and Council is 

free of Government influence in its 

membership, although the new 

regulatory committee is to become 

more distinct. More discussions are, 

however, needed in relation to the 

Guarantee Fund and possible claims 

on it, and also as respects a number 

Editorial 

Events, events 


Editor 

Peter Nicholson 

There appears 

at present to be 

a considerable 

momentum 

building in 

favour of more 

co-ordinated 

and widerscale 

pro 

bono efforts 

of regulatory matters that the Society 

thinks are a good idea but of which 

the minister has yet to be persuaded. 

The summer agenda remains a busy 

one even if most of the major issues 

now appear to be settled. 

Free to give 

It is pleasing, however, to be able to 

lead the issue with a subject that most 

people readily accept to be a good 

thing. Granted, there remain 

suspicions in some quarters that pro 

bono work is just being used to fill in 

the holes in the legal aid system, but 

if true to any extent, there is far more 

to it than that. There will always be 

worthy causes that fall outwith the 

ambit of any legal aid scheme, and it 

can only be to the profession’s benefit 

to be seen to be raising its game in 

order to help out. Initiatives to 

establish a better network of contacts 

in order to achieve more effective 

delivery are to be welcomed. 

That said, the issue has become a 

live one whether some element of duty 

in relation to pro bono should be 

written into professional rules; and 

we also present both sides of that 

argument a few pages from here. My 

own instincts remain that this would 

be wrong. Put at its most fundamental, 

enforcing charitable giving seems a 

contradiction in terms, and calculated 

to extinguish the element of goodwill 

that constitutes the lifeblood of 

working for a good cause. 

There appears at present to be a 

considerable momentum building in 

favour of more co-ordinated and 

wider-scale pro bono efforts, and with 

it for allowing individual lawyers to 

give some time in this way if they 

want to. It seems to me that that is the 

kind of practice we should be 

encouraging. 

Read Peter Nicholson’s blog, and others 

at www.journalonline.co.uk/blogs 

Follow the Journal on Twitter at twitter.com/jlsed 


People 

Onthemove 

CAMPBELL SMITH WS LLP, 

Edinburgh, intimate that D Neil 

Ferguson, WS, has retired from 

the partnership with effect from 

31 March 2010 but continues to 

be associated with the firm as a 

consultant. 

CRIGGIES SOLICITORS, Lanark, 

intimate that with effect from 

30 June 2010 Stephen Fox has 

Office move, Low Beaton Richmond LLP 

6 / theJournal July 2010 

retired as a director but remains 

associated with CRIGGIES as a 

consultant. Further, we are 

pleased to announce that with 

effect from 30 June 2010 

Archibald Hill has been appointed 

as a director of the firm. 

HAMILTON BURNS, Glasgow, 

are delighted to announce the 

appointment of Peter Maguire as 

Low Beaton Richmond LLP are pleased to announce 

their Glasgow West End office is moving on 

23 July 2010, from 21 Vinicombe Street, Hillhead, 

Glasgow G12 8BE to 326 Dumbarton Road, 

Partick, Glasgow G11 6TF, LP 4 Partick. 

All other contact details remain the same. 

For more information please contact us on 0141 339 8442, 

email law@lbr-west.demon.co.uk or visit www.lbr-law.co.uk 

an associate in their Chinese 

Department with effect from 

1 June 2010. 

McARTHUR STANTON, 

Helensburgh and Dumbarton, 


30 June 2010, Ian Wolfe retired 

as a partner in the firm. The 

partners are delighted, however, 

to confirm that Ian will continue 

with the firm as a consultant. 

McEWAN FRASER LEGAL, 

Edinburgh, are pleased to 

announce that Craig Fraser has 

been assumed as a partner with 

effect from 14 June 2010. The 

Craig Fraser 

fyi 

Intimations 

for the people 

section should 

be sent to: 

Denise Robertson, 

Registrar’s Dept., 

The Law Society 

of Scotland, 

26 Drumsheugh 

Gardens, 


Email: 

deniserobertson@ 

lawscot.org.uk 

Send your 

photographs for the 

people section to: 

peter@connect 

communications.co.uk 

firm’s address and contact details 

remain unchanged. 

McLEISH CARSWELL, Glasgow, 


17 May 2010, we have moved 

from our 29 St Vincent Place, 

Glasgow premises. Our city 

centre office is now at Atlantic 

House, 6th floor, 45 Hope 

Street, Glasgow G2 6AE and the 

LP address is LP 14 Glasgow 6. 

Our telephone numbers remain 

unchanged. Our office at 7 

Admiral Street, Glasgow now 

handles private client business 

in addition to estate agency 

services. We also intimate 

that our court associates 

Helen E Carmichael and 

Mylene H M Scott are no 

longer with the firm. 

www.journalonline.co.uk

The fallout from the Cadder appeal has 

meant some unexpected business at the 

start of the new President’s term of office 

Drop everything 

Flaming June has come and gone. 

After the driest start to the summer 

for years, with an uninterrupted 

Wimbledon and dashed British hopes 

once more, I pen my President’s 

column for July looking at the typical 

Scottish weather, which has coincided 

with the beginning of the school 

holidays. The holiday period is upon 

us not least for the Scottish 

Parliament, which in the lead-up to 

its recess has progressed to the 

conclusion of stage 2 of the Legal 

Services Bill and passed the Criminal 

Justice and Licensing (Scotland) Bill 

with some far-reaching changes in the 

criminal justice system. 

Being President of the Society 

has much in common with private 

practice – you do not know what is 

coming next so it is best to expect 

the unexpected. One of my early 

engagements representing the 

profession was also one of the more 

unusual for a solicitor more used to 

corporate work – an urgent meeting 

with the Scottish Government law 

officers to discuss the guidelines 

issued in response to the Cadder v 

HMA appeal. The Society does not 

dispute the Lord Advocate’s right to 

instruct the police as to how they are 

to investigate crime. However, 

neither the Lord Advocate nor the 

Scottish Government has the power 

to direct solicitors as to how to carry 

out their duties. 

The Society recognised that the 

interim guidelines for police station 

interviews of suspects should be 

published to our members as soon as 

possible. We realised too that they 

could lead to complaints because 

they could lead to solicitors 

contravening the Society’s practice 


President 

Jamie Millar 

It is vital that 

the Society 

works together 

with other 

bodies to find a 

solution that 

operates in the 

interests of the 

public and the 

profession 

rules – which forbid a solicitor acting 

for another solicitor’s client without 

that solicitor’s consent – and the 

legal profession’s code, which states 

that instructions to solicitors can 

only be accepted from the client 

directly. All of this and more – 

including the lack of consultation 

during preparation of the guidelines 

– was discussed at the meeting with 

Crown Office officials. It was agreed 

to set up a working party – involving 

the Society along with the Crown 

Office, the Association of Chief 

Police Officers in Scotland and 

Scottish Legal Aid Board – to look at 

how best to operate under the 

interim guidelines in the short term. 

The guidelines have considerable 

implications for those in legal aid 

practice throughout the country, but 

particularly so in rural areas. Imagine 

the solicitor in Inverness who gets a 

call from Ullapool police station at 

2am on a Saturday morning 

explaining that a client is to be 

interviewed as a suspect and inviting 

him or her to attend. Given the 

importance of the administration 

of justice, it is vital that the Society 

works together with the other bodies 

to find a solution that operates in the 

President 

interests of the 

public and the profession. 

As a corporate lawyer, I am not 

as familiar with the intricacies of 

the legal aid system as many of my 

colleagues, but my early involvement 

in such a critical issue is a reminder 

that, whatever our areas of practice, 

we can all find common cause in 

promoting and protecting the rule of 

law and access to justice. 

It is a matter of regret that the 

Government has then promulgated 

legal aid regulations, the effect of which 

will be for the interviews of suspects in 

summary cases to be subsumed into 

the block fee for the case. The Society 

recognises the constraints on the public 

purse but takes the view that a solution 

to the problem should have been the 

priority, not how to fund the changes 

needed from the existing legal aid 

budgets. These regulations are not an 

answer to the problems that we all face, 

and we will continue to push for a 

more sustainable, longer-term solution. 

July is shaping up as a busy month 

as we seek solutions to the fallout 

from the Cadder appeal. It also 

provides a final opportunity to 

respond to the Society’s consultation 

on a revised constitution and standing 

orders. The consultation closes on 

23 July, though it would be extremely 

helpful to have members’ views before 

that date. Happy holidays to those of 

you who are taking well-earned breaks 

and I hope to be able report progress 

in my next column. 


Letters 

Should we resist ARTL diktat? 

Like most, if not all solicitors, my 

firm recently received the second 

diktat from Halifax, a division of 

Bank of Scotland plc, when they 

told us that all panel solicitors in 

Scotland would have to be 

signed up to ARTL to remain on 

their panel. Their earlier diktat 

told us all, in unsigned and 

undated letters, that they would 

not execute discharges until 

mortgages had been repaid. 

I wrote to the Law Society of 

Scotland at the time to complain 

about this unnecessary, 

inconvenient and potentially 

damaging and expensive 

decision, hoping to receive some 

support, but the Society could see 

no harm in it – even although no 

other lender took the Halifax 

view and none to my knowledge 

have followed suit. All other 

lenders continue to trust Scottish 

solicitors to pay off loans at 

settlement in the usual way. 


I think we should all 

remember that Halifax is a failed 

bank. They ran their business so 

well that they almost went bust – 

only being saved by allowing 

themselves to be taken over by 

Lloyds TSB, aided by a massive 

input of taxpayers’ money! 

When I received the Halifax 

letter I thought it was too much 

to hope that the Society would 

stand up for the hundreds of 

firms who are not on ARTL and 

have no desire to go on to 

ARTL, and represent us in the 

face of the bank’s bullying 

tactics. Alas, the feature article 

in pages 32 and 33 of the June 

2010 Journal shows where the 

Society’s loyalty lies – with a 

failed bank now partly owned 

by the taxpayers and not with 

their own members. Were we, 

as members, consulted? Not to 

my knowledge. 

I suppose we could expect no 

help from Registers of Scotland. 

Finding that very many solicitors 

are not interested in ARTL, they 

join in bullying those firms who 

have not signed up to ARTL by 

welcoming Lloyds Banking 

Group’s announcement! RoS 

can’t persuade us by their own 

arguments put forward at 

seminars and in Journal articles 

so they decide to force us to join 

or we can go out of business so 

far as they are concerned. This is 

just bullying and it is quite 

disgraceful that RoS should try to 

bully firms into joining the ARTL. 

Am I the only solicitor in 

private practice in Scotland who 

takes this view? If I am in a 

minority of one so be it. Is there 

not a large number of solicitors 

out there who share my view and 

despair of the Law Society of 

Scotland and its lack of support 

for Scottish solicitors? 

Halifax Bank of Scotland failed 

in the past and like The Royal 

Bank it failed because of poor 

decisions which resulted in these 

banks having to be bailed out; 

and yet here is Registers of 

Scotland and the Law Society of 

Scotland putting out an obviously 

prearranged and concerted piece 

of spin in our Journal praising 

Lloyds Banking Group while they 

make every effort to force us to use 

ARTL or our businesses will be 

financially disadvantaged. If what 

RoS and the Society say in their 

concerted press release spin is true, 

why is everyone not already 

signed up to ARTL? I rest my case. 

Yours despairingly, J S Paterson, 

Stewart & Osborne, Beith 

Return and recall orders 

May I be permitted to take 

issue with Charles Stoddart’s 

observations on the case of 

Stuart v HM Advocate, 

reported under the above 

heading in the criminal roundup, 

Journal, June, 47? 

In his commentary, he states 

erroneously that “the operation 

of s 17 is solely within the 

jurisdiction of Scottish 

ministers”. While a recall 

warrant is always issued by 

Scottish ministers, the Act 

provides that ministers shall 

revoke the offender’s licence if 

recommended to do so by the 

Parole Board, or may do so, if 

revocation is expedient in the 

public interest and it is not 

practical to await such 

recommendation. While 

ministerial recall is becoming 

increasingly common, the 

majority of revocations under 

s 17 are at the recommendation 

of the Parole Board. 

While there may still be a lack 

of understanding of these 

provisions amongst sheriffs, 

prosecutors and defence 

agents, I might observe that 


Janette Wilson, Convener of the 

Conveyancing Committee replies: 

Contrary to the impression given by 

Mr Paterson, the Society has been 

consulted by Lloyds Banking Group 

(LBG) over the past year in 

connection with various panel 

issues. Unlike some other lenders 

LBG has been willing to engage with 

us in connection with such matters. 

Last autumn, LBG advised us that 

it had made a policy decision not 

to release discharges until it had 

received funds in redemption of the 

relevant loan. The rationale for this 

was that a significant number of 

discharges issued prior to settlement 

had found their way on to the 

register without the loan being 

redeemed. LBG assured us that the 

discharge would be issued within 

14 days of receipt of funds, to enable 

firms to comply with the usual 

undertaking to deliver same to the 

purchaser’s agents within 21 days. 

This was a risk management decision 

made at UK level and affected all 

subsidiaries within the group. As we 

explained to Mr Paterson at the time, 

while this may prove inconvenient 

for our members LBG is entitled to 

proceed on this basis. 

LBG consulted us about ARTL in 

April. It has particular concerns 

about delays in registration of its 

securities, which are significantly 

greater in Scotland than in the other 

UK jurisdictions. Of course much 

of this is due to the registration 

process itself, which is outwith the 

control of solicitors. Nonetheless, it 

represents a significant risk. If the 

registration application is 

withdrawn or rejected for some 

reason this means that the loan is 

unsecured. When ARTL is used the 

register is updated within 24 hours 

of settlement and accordingly there 

is virtually no delay in the 

purchaser’s title and lender’s 

security being confirmed. Against 

this background, LBG decided to 

amend its panel membership 

criteria to make the use of ARTL 

mandatory, where possible, with 

effect from 1 September. 

LBG is aware of the limited scope 

of ARTL and that both parties’ 

agents require to hold an ARTL 

licence before it can be used for a 

particular transaction. After we 

raised concerns regarding the 

timescale for implementation of the 

changes, LBG confirmed that firms 

which have timeously applied for an 

ARTL licence will not be removed 

from the panel after 1 September if 

that application is still being 

Our members should be assured 

that we shall take every 

opportunity to... resist measures 

which would adversely affect them 

this is not due to lack of 

published information on this 

particular issue. 

I am aware, having delivered 

papers to the Judicial Studies 

Board on a number of 

occasions, that the use of these 

two provisions continues to 

cause widespread confusion, 

but at the risk of being accused 

(correctly) of blowing my own 

trumpet, the operation of ss 16 

and 17 was the subject of an 

article in Scottish Criminal Law in 

February 2008, can be found in 

the updated Stair Memorial 

Encyclopedia volume on Penal 

Institutions, and in “Prisons, 

Prisoners and Parole”. 


I have long lobbied for this 

information to be made 

available to the courts in a more 

easily comprehensible form than 

is currently the case, but am 

aware that prosecutors often do 

not know whether or when a 

prisoner has been returned to 

custody (especially if they are 

also remanded in custody in 

terms of the 1995 Act), while 

defence agents tend to be 

dependent on their clients being 

able to provide accurate 

information. I am aware that as 

recently as 2007 the Crown 

Office and Scottish Court Service 

did not have access to the 

Scottish ministers’ or Parole 

processed by Registers of Scotland. 

The Society has consistently 

supported the ARTL system and 

encouraged its use, recognising the 

benefits for both the profession and 

the public, particularly from the risk 

management perspective. 

Ultimately, lenders are entitled 

to determine the criteria for 

membership of their various panels, 

as well as the basis on which they 

instruct solicitors to put in place 

securities on their behalf. Most of 

them have had to take urgent action 

to stem losses on their loan books, 

some of which have resulted from 

solicitors’ negligence or even fraud, 

and accordingly have been looking 

to manage their solicitors’ panels 

much more strictly. Many claims on 

the Master Policy arise from such 

losses and it is clearly in the interests 

of all our members that we work 

with the banks to address this issue. 

Our members should be assured 

that we shall continue to take every 

opportunity to engage positively 

with lenders and to resist measures 

which would adversely affect them. 

A Registers of Scotland 

spokesperson added: 

The decision by Lloyds Banking 

Group that “all panel solicitors in 

Scotland would have to be signed 

up to ARTL to remain on their 

panel”, is entirely a matter for 

Lloyds. RoS welcomed the 

announcement as it believes that 

customers of firms using ARTL, and 

the firms themselves, benefit from 

the faster, more secure and cheaper 

service ARTL provides. 

Board’s databases in respect of 

recalled prisoners, and it may be 

that there is still a difficulty in 

the obtaining of up-to-date 

information. In this particular 

case, it occurs to me that, as the 

appellant was already in custody 

on remand, his solicitor could 

only have ascertained the true 

position by asking whether he 

had been served with a recall 

warrant by Scottish ministers in 

terms of s 17, as this 

information could not under any 

circumstances appear on his 

schedule of previous convictions. 

Douglas Thomson, Solicitor Advocate, 

McArthur Stanton, Dumbarton 

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 

Charles Stoddart writes: 

In para [2] of its opinion in Stuart 

the court refers explicitly to the 

discretionary power of the 

ministers to revoke an offender’s 

licence and recall him to prison, 

which is a reflection of the 

statutory language used at the 

start of s 17(1), where the word 

“may” and not “shall” is used. 

Only the ministers can “operate” 

the section by the exercise of that 

power. That said, it is, however, 

difficult to envisage a situation 

where the ministers would ignore 

a recommendation of the Parole 

Board to revoke a licence, but the 

terms of the statute would seem 

to suggest that they can. 


Opinion 

Should solicitors be obliged to carry out a certain amount of pro bono work? 

The idea has been put forward by Edinburgh IP lawyer Raymond McLennan, 

who outlines his thinking here. Solicitor Bruce de Wert puts the opposing case 

Free to give 

The idea for 

some form of 

compulsory pro 

bono work came 

about because 

“access to justice for the 

poor and needy” is always 

mentioned in the arguments for and 

against alternative business structures 

(ABS) or in the perceived effects of 

the Legal Services (Scotland) Bill. 

With the Salvation Army opening 

a law firm in Australia, it seemed an 

obvious step for other charities to buy 

into or create law firms in Scotland, 

and this could economically squeeze 

existing firms even further. 

If all firms offered a set number of 

hours pro bono across the board, 

and not simply as a marketing issue 

for selected firms, this would open up 

legal services to the poor and needy 

wherever they are located. 

In addition, the internet has 

flooded the marketplace with free 

legal information. The currency of 

that free information is attention. 

Time (or attention) spent on a 

website boosts its page rankings and 

gives it credibility. Even amateur legal 

websites are gaining credibility. Now 

the professionals and amateurs are 

suddenly in the same legal 

information marketplace. 

And there are a lot more amateurs 

than professionals. 

This leaves a lot of people with a 

lot of information, but with no real 

knowledge of how 

to apply it… and 

for that reason they 

need, nay MUST, 

speak to a solicitor. 

To continue with the 

internet concept for a 

second, websites that create trust, 

get “traffic”. In other words, the 

reputation of the site brings it 

business. Lawyers already have (or 

should have) trust and reputation, 

but they don’t get “traffic” because 

the perception is that they are too 

expensive. If everyone feels that they 

can walk into any law firm to make 

sense of their free information, that 

will naturally lead to more paid 

business and in turn remove or 

reduce the perception that lawyers are 

“unapproachable and expensive”. 

But why do pro bono work? Adam 

Smith said that “enlightened selfinterest 

is the most powerful force 

in humanity”. 

Nowadays, in a world where all 

our subsistence needs are met, we 

find ourselves with spare cycles of 

what sociologists call “cognitive 

surplus”, or energy and knowledge 

that are not fully tapped by our jobs. 

At the same time we have 

emotional and intellectual needs that 

are not fully satisfied at work either. 

In short, doing things we like 

without pay often makes us happier 

than the work we do for a salary. You 

still have to eat, but there is more to 

The opportunity to contribute 

in a way that is both creative 

and appreciated is exactly the 

sort of fulfilment that is privileged 

above all other aspirations 


Raymond 

McLennan 

Raymond McLennan 

is a solicitor with 

Morisons LLP. The 

views expressed 

here are personal. 

life than that. The opportunity to 

contribute in a way that is both 

creative and appreciated is exactly the 

sort of fulfilment that is privileged 

above all other aspirations – and 

many jobs do not provide that. 

Many lawyers say that they already 

do plenty of pro bono work. They 

must be sole practitioners or partners, 

because according to the Ministry of 

Justice February 2008 report into the 

extent and value of pro bono work, 

employed lawyers are driven by 

financial targets and constraints and 

not allowed in many cases to do pro 

bono work without answering to 

someone above. This is insulting to 

intelligent, professional people who 

have to ask for permission to do 

something good. The compulsory 

element is needed to level the playing 

field for all lawyers. 

If you don’t want to do it, then 

there should be some mechanism to 

help with unmet legal need, or as 

Professor Donald Nicolson suggested: 

“Those who do not want to provide 

their service free, should make a pro 

rata contribution to a central ‘access 

to justice fund’ and these can be used 

to support those who do, such as law 

clinics, the Faculty’s Free Legal 

Services Unit and LawWorks, which is 

about to be launched in Scotland to 

co-ordinate and foster pro bono 

amongst solicitors and law students.” 

In conclusion, there is an unmet 

legal need as far as the poor and 

needy are concerned. The upcoming 

changes in the legal sector and the 

threats to our business provide an 

ideal opportunity for the profession 

to be innovative. The Ministry of 

Justice report points to a long history 

of pro bono work. In that same report, 

58% of legal executives would like to 

help when the mechanism allows. At 

present the mechanism does not 

allow it, so let’s change it. 


The answer proposed by Raymond 

McLennan is that we should all be 

forced to carry out pro bono work. 

But what is the question? 

Raymond suggests that our 

competition in the future will not 

be Tesco but will be the likes of 

charitable bodies such as the 

Salvation Army and others. 

He says that to compete with this, 

we should act now. Raymond has, 

also, told me of his view that, to 

retain clients, the profession needs 

to innovate and market itself. 

I’m not writing here, merely, to 

counter Raymond’s argument about 

pro bono work. Raymond is right 

about some things. We do need to 

market ourselves. We do need to 

innovate. I shall return to this later. 

The definition of “pro bono” is 

“done for the public good without 

compensation”, and words that I 

would associate with this are 

“charitable”, “generous”, “kindly”, 

“open-palmed” – all words relating 

to the giving of something out of 

an internal desire to do good. 

I think a lot of us do pro bono 

work. I certainly do. I have done 

myriads of free 15-minute 

diagnostic interviews. 

Although my wife 

would doubt it, I 

must have some of this 

“cognitive surplus”. In 

addition, I publicise the 

good work that my staff and 

I do for charity. As a result, the 

message has come over that I am, 

after all, human, that I care, that I am 

approachable and I am not a toff. 

The point, however, is that I do it 

because I want to do it. If I am forced 


Bruce 

de Wert 

Bruce de Wert is a 

solicitor with more 

than 25 years’ 

experience. Apart from 

his traditional practice 

at Georgesons, 

Wick and Thurso, he 

is also the owner of 

www.scotwills.co.uk 

and his most recent 

innovation, 

www.myscottish 

divorce.co.uk 

to do it, it is no longer “pro bono” 

and the pleasure will come out of it. 

As I have said to Raymond, his 

proposal is both repugnant and 

immoral. To be forced to do 

something for nothing is slavery: 

“the subjection of a person to another 

person, especially in being forced into 

work”. To force those in our employ 

to do pro bono work would be to be 

complicit in slavery. Can we presume 

that, being pro bono, no payment 

would be expected by our employees? 

If that were not bad enough, 

I glean from our correspondence 

that the anticipation is that, with 

this pro bono work, we will change 

the public perception of solicitors. 

It won’t. In fact, it would have a 

negative impact on the public regard 

for the profession. He is inviting the 

Government to force us to do 

something – thereby implying 

that we don’t do it already. 

Raymond has his finger on the 

button here, though. There is a real 

problem with the public perception 

of solicitors. It can be stated as “all 

solicitors are rogues... except mine”. 

Why is this? It is a marketing issue. 

It’s because we don’t get our act 

together and drip feed the public with 

all the good news stories that exist. 

I do it, but Raymond has a point 

– it needs to be done collectively. 

In my view, the profession, 

through the Law Society, should 

employ someone permanently 

dedicated to this task of changing 

perceptions as to who we are and 

what we do. It will take some time, 

but I have no doubt whatsoever 

that we would be successful. 

The other point raised by 

Raymond is that of innovation. 

We certainly need to innovate. 

Doing things the way we have 

always done it, just because we’ve 

always done it that way, will not cut 

the mustard in the future. 

Raymond does not think Tesco 

would be our competitors. I think that 

they (and others like them) will. They 

do not think the way we do. They 

probably will not produce a better 

product, but they will innovate and 

they will, very definitely, market their 

products much better than we do. 

On his blog, Raymond quotes Sam 

Walton, Founder of Wal-Mart, owners 

of Asda: “There is only one boss: the 

customer. And he can fire everybody 

in the company from the chairman 

on down simply by spending his 

money somewhere else.” 

I couldn’t agree more. 

We certainly need to innovate. 

Doing things the way we have 

always done it, just because we’ve 

always done it that way, will not 

cut the mustard in the future 


Feature Pro bono 

For the 

common good 

Pro bono legal work is now well established in many firms and organisations, 

but many feel that better co-ordination would result in more effective delivery. 

Peter Nicholson reports on a recent conference hosted by Lord Advocate Elish 

Angiolini QC, which aimed to point the way forward 

think there is huge 

potential and I think any 

vision might be quite 

“Ijust 

limiting”. Lord Advocate 

Elish Angiolini QC was responding to 

my question – what was her vision 

for pro bono in Scotland? 

We were meeting at the conclusion 

of a conference in May, organised and 

hosted by her department and held in 

the Scottish Government offices, on 

the future of pro bono legal services 

in Scotland. The sellout event covered 

the perspectives of the providers and 

beneficiaries of pro bono help, asked 

how it could be done better, and 

highlighted some of the initiatives 

now under way. 

“The fact that it was heavily 

oversubscribed was itself a 

manifestation of the huge potential 

out there”, Angiolini commented. 

“Not only is there lots of pro bono 

work taking place quietly round the 

country, there is also clearly an 

enthusiasm and a real interest about 

how we can pursue it further and how 

we can galvanise the skills which are 

out there in a way which is as 

productive as possible.” 

Without any hint of compulsion 

about the concept, the range of 

speakers taking part demonstrated 

that there are openings for all. Large 

and small firms, in-house lawyers, law 

centres, and the Faculty of Advocates 

were all represented, and of course 

the Strathclyde student law clinic, 

now only one of a number of 

student-run initiatives. 

Cheap substitute? 

Even so, there remains among 

some parts of the profession an 

acknowledged suspicion of, if not 

resistance to, the whole idea. Perhaps 

not surprisingly, the charge is that 

we are simply looking for cheap 

alternatives to an overstretched 

and underfunded legal aid system. 

Are pro bono providers not in 

competition with those seeking to 

earn an honest crust in ordinary high 

street legal practices? 

Absolutely not, the Lord Advocate 

insists. “This is in no sense a substitute 

for a properly funded system of legal 

aid. But there will always be cases and 

situations which are not covered by 

the legal aid system, where legal 

assistance is needed.” 

Similarly, in her opening address 

she made the point: “Access to justice 

must be affordable. Legal aid can 

never hope to meet all needs.” 

Whether because of financial cutoff 

points, or the nature of the advice 

required, pro bono work had a 

longstanding function reflecting the 

ethos of the profession and 

supporting the rule of law. 

Angiolini herself can speak from 

12 / theJournal July 2010 www.journalonline.co.uk

the experience of her upbringing in 

Govan during the years of industrial 

decline. When her parents successfully 

applied for a repairs grant for their 

tenement home, she found herself as 

a teenager helping what seemed like 

the whole street fill in the necessary 

forms to do likewise. That was 

followed by what she claims to be still 

her “greatest forensic triumph” – a 

successful benefit appeal on behalf of 

an 84-year-old woman for a carpet to 

replace her worn-out linoleum. 

Anxious that the profession belies 

the fat cat, ambulance chasing 

mythology embedded in the public 

consciousness, she links pro bono 

work to the core professional value of 

maintaining the rule of law: it 

promotes the access to justice without 

which rights and obligations are 

empty. But it is “also good for us as 

lawyers and people”, providing a 

sense of satisfaction from putting 

something back, as well as being 

good for business as a means of 

training and developing staff and 

attracting prospective employees. 

Cultural issue 

The Lord Advocate was not the 

only one to recognise this feature 

as particularly attractive to younger 

lawyers. “It’s an opportunity for them 

to really get involved”, said Stuart 

Neilson of McGrigors, whose firm’s 

Horizons programme, allowing staff 

a half day per month for pro bono or 

volunteering work has proved very 

popular. The opportunities it 

provides for younger lawyers, and 

others, were one of the key features 

of the scheme – as well as the need 

for buy-in at senior level. 

This is not 

necessarily 

small-scale 

work. When 


the Live8 concert was staged at 

Murrayfield, the firm undertook 

between £50,000 and £100,000 

worth of work pro bono. But there is 

always a reporting structure, with a 

co-ordinator who gives clearance. 

Where McGrigors have Horizons, 

Pinsent Masons have Starfish. The 

name derives from the story of the 

man surrounded by a multitude of 

beached starfish who started putting 

them back into the sea one at a time. 

When asked what difference it made, 

he replied: “It matters to each of the 

starfish I put back”. Fraser McMillan, 

head of the international firm’s 

Scottish office, said the fact that they 

were a collection of specialists not 

involved in private client work had 

implications for what they could 

offer. However they advise charities 

and arts organisations on 

constitutional and IP issues, for 

example – and staff gave up their 

Secret Santa presents to buy books for 

a primary school. 

Why do it? “People are very 

motivated to get involved.” There is 

also a strong driver from clients, 

especially in the public sector but 

also companies with affiliated 

charities. And as with McGrigors, it is 

essential that the firm contributes by 

freeing up staff time, and recognises 

the work in appraisals and 

promotions. 

Both Neilson and McMillan 

stressed the need for pro bono work 

to be done just as 

professionally as 

paid work. “It 

doesn’t work as a 

two-tier service”, 

McMillan 

commented, “though it means there 

is a limit on what we can do.” And 

Neilson emphasised that scoping 

letters and identifying what the task 

involves are as important with pro 

bono work as with any other. 

It was Ian Smart who spoke for the 

small practitioner, he of the firm 

whose reach spans “Cumbernauld 

and, er, Cumbernauld, though we 

sometimes have to give advice at 

Coatbridge Police Station”. He knew 

all about the suspicions of small 

practices, especially those in legal aid; 

they had a “legitimate concern” that 

bread might be taken out of their 

mouths, and were irritated at the 

assumption that pro bono was 

something done by big firms. “We do 

a huge amount of work, though not in 

a structured way”, he said. “Probably 

one in three new clients goes away 

with no fee, no file – just the hope 

that they will signpost us to others”. 

But he supported pro bono because 

we had to be realistic about limits on 

funding – the demands on legal aid 

could be as unlimited as those on the 

NHS. Also organisations couldn’t be 

legally aided; and the law centre 

network was patchy. He too 

recognised the link to the rule of law: 

if disputes of small amount were not 

resolved in accordance with that, it 

“slowly but certainly undermines the 

rule of law”. 

Smart made the point that there was 

Continued overleaf > 

“There will always be cases 

which are not covered 

by the legal 

aid system, 

where legal 

assistance 

is needed” 


Feature Pro bono 

Continued from page 13 > 

nothing wrong in looking for a benefit 

to your firm, if that should come 

about, “as long as you are doing the 

work for the benefit of the public”. 

Counted in 

Then it was the public sector’s turn. 

Jane McLeod of the Government 

Legal Service for Scotland introduced 

us to the GLSS Pro Bono Network, 

launched last October but modelled 

on a Whitehall version running since 

2000. Because Government lawyers 

don’t have professional indemnity 

insurance cover, their work has to be 

done by way of volunteering for 

citizens’ advice bureaux or other 

organisations, or by serving as charity 

trustees and the like. A rota of 12 

volunteers, for example, now provides 

a weekly legal advice clinic at the CAB 

close to the Scottish Government’s 

Leith headquarters. 

As with its counterparts in private 

practice, the GLSS, which covers more 

than 200 lawyers working for the 

Scottish and UK Governments, HMRC 

and the Scottish Parliament, is trying 

to “embed a pro bono culture” with 

support from managers. While it was 

too early to say what difference it was 

making, McLeod assured us that more 

people were now getting involved. 

Time off can be given for voluntary 

work, but mostly it is done out of 

working hours, the concept being 

sold on the basis that “people enjoy 

it, get a buzz out of it, feel they are 

giving something back”, she told the 

Journal afterwards. 

And the bar does pro bono too. 

Mungo Bovey QC explained the two 

parts to the Faculty of Advocates’ 

Nicolson: Catch ’em young 

Law students “want to get their 

hands dirty” in real cases with a 

pro bono element, and the 

biggest problem is finding the 

resources to take on all the 

students who want to help. 

Professor Donald Nicolson, 

founder of the Strathclyde 

student law clinic, extolled to the 

meeting the virtues of getting 

intending lawyers involved in pro 

bono at an early stage, not least 

of which is giving them a more 

rounded education. 

Student motivations can 

change in a short time, he added, 

and you need to keep alive the 

altruistic goals with which many 

service: the free representation unit, 

through which devils appear before 

tribunals, and the free legal services 

unit, comprising about 80 qualified 

counsel, operating through, for 

example, advice agencies, who do the 

solicitor’s work – though these agencies 

are stretched and can find it difficult to 

provide the necessary support. 

Sometimes, he added, finding a 

counsel to act is not a problem, but 

finding an instructing solicitor is: the 

recent action to preserve a historic 

wall in Falkland was such a case until 

Rollo Davidson McFarlane stepped 

in. He hoped the conference would 

result in more solicitors coming 

forward, and “being ready to instruct 

perhaps at short notice”. 

As was recently advocated in the 

Opinion column (Journal, May, 9), 

Bovey supported the introduction of 

pro bono costs orders, which require 

a losing opponent to pay into a fund 

to support future pro bono activities. 

The Faculty will not seek an award of 

expenses when acting pro bono, but 

Bovey knew of a case where a less 

favourable offer had been made 

because the client was assisted. 

However, it would need legislation to 

make them possible. 

Matchmaking 

Apart from getting more people 

involved, what is the scope for 

providing a better service? Mike 

Dailly of Govan Law Centre made a 

strong plea for some form of national 

co-ordination to better match needs 

and resources. If skilled help is 

needed, he said – and this might 

include research, drafting or language 

skills – it’s a “fairly random process” 

at present to find it, and some kind of 

of them come into the law. 

Research into what students write 

in their diaries has shown that it is 

worth making the difference to 

their ideas and values at that 

stage – and, he maintained, was 

borne out by the number of 

former Strathclyde students 

coming back to volunteer their 

support for the clinic. 

It’s also a highly economical 

way to give advice – while the 

clinic doesn’t take on cases that 

would qualify for legal aid, 

Nicolson claimed it can run 

cases at maybe as little as a 

quarter of the cost of legal aid 

cases. And he added that by 

doubling the investment in the 

clinic, it could treble the number 

of clients helped. 

While advisers check the final 

product, the model is a handsoff 

one, with students receiving 

mentoring from their peers. But 

support from legal firms is very 

much needed, whether financial 

or by way of providing solicitors 

to help with court appearances 

or other key stages of a case. 

Among Scotland’s other 

universities, the Strathclyde clinic 

model is now being followed in 

Aberdeen, and the University of 

the West of Scotland is hoping to 

Elish Angiolini: 

Don’t lose the 

momentum of 

the conference 

There is a need for support 

in public interest cases that 

need work not recognised 

by the tendering system 

now replacing grant funding 

register, available online, could help 

solve this and also promote the pro 

bono concept and drive uptake. 

There is a particular need for 

support, Dailly added, in public 

interest cases such as the bank charges 

litigation, which need a lot of strategic 

work that is not recognised by the 

do the same in conjunction with 

Paisley Law Centre. 

Edinburgh University is trying 

to raise funds for its weekly free 

legal advice centre manned by a 

combination of staff, Diploma 

students and volunteer solicitors. 

Glasgow Caledonian students are 

involved in the Innocence Project 

which deals with alleged 

wrongful convictions. 

Individual students at Stirling and 

Napier offer their services at the 

local citizens’ advice bureaux. 

Glasgow University has plans 

to develop a pro bono project 

once it has re-established its 

Diploma course. 


tendering system now replacing grant 

funding as the way to win public 

money. That’s where professionals or 

students could give some time to help 

with the necessary research. 

Dailly affirmed that there is a 

great appetite in Scotland for more 

provision. Were we on the cusp of 

change, he asked? 

Change may come about that bit 

quicker if the ambition to see the 

LawWorks movement extended to 

Scotland is realised. Established in 

England & Wales in 1997, where it 

was originally known as the Solicitors’ 

Pro Bono Group, LawWorks 

(www.lawworks.org.uk) is an 

independent national charity “which 

aims to provide free legal help to 

individuals and community groups 

who cannot afford to pay for it and 

who are unable to access legal aid”. 

For individuals, it offers advice 

clinics, a mediation service and 

casework assistance. For charities and 

other not-for-profit organisations, it 

maintains a bank of volunteer law 

firms whose expertise it matches to 

groups in need of help. It also provides 

support services for advice agencies. 


As the Journal went to press, the 

Scottish initiative was at a “watch this 

space” stage. A steering committee 

including Ian Moffett of Anderson 

Strathern, Jane McLeod of the GLSS, 

Emma Anstead of Proactive 

Employment Lawyers, Aberdeen, 

Colin Hulme of Burness and Professor 

Donald Nicolson of Strathclyde 

University is setting up a company 

limited by guarantee and applying for 

OSCR registration. With a fair wind 

(including some finance if it can get 

it) it hopes to launch in the autumn. 

“The group is very enthusiastic”, 

Moffett told me, while McLeod 

commented: “It’s a great 

opportunity to provide some 

co-ordination of pro bono activity, 

improve the level of provision, and 

raise awareness of pro bono.” 

Home-grown solution 

The move has the Lord Advocate’s 

backing. “The importance of not 

losing the momentum of today’s 

event is clear”, she told the Journal 

after the conference. “We intend to 

look at how we can promote pro 

bono work in Scotland more 

effectively, without, of course, having 

an inhibiting effect because it 

becomes too structured or associated 

strongly with Government, or much 

more dangerously perceived as a 

substitute for legal aid, which it 

clearly is not.” 

Was a co-ordinating role of the 

sort Mike Dailly appealed for, likely 

to be the way the Government could 

be of most practical help? “I think it 

can be but I don’t think it’s for 

Government to dictate to the 

profession how it’s done, and that’s 

why I’m happy to listen following 

this conference to those who are 

providing these services to know 

whether or not they want that lead. 

“There’s a steering committee in 

England & Wales which is chaired by 

the Attorney General and I’m very 

happy to follow that role, but only if 

it’s appropriate for Scotland. It’s 

important to look at what is best in 

the Scottish context and how we 

integrate the role of LawWorks and 

the co-ordinating role, the facilitation 

that it provides, with the wider 

committee or group that looks at this 

work throughout Scotland.” 


Feature Judicial Appointments Board 

“Not 

for the 

likes of me”? 


As the Judicial Appointments Board for Scotland embarks on its next exercise to 

select a pool of suitable candidates for appointment as sheriff, Chief Executive 

Trevor Lodge explains how the process works and what the Board is doing to 

encourage the profession’s best to apply 

The Judicial Appointments 

Board for Scotland has 

been in existence since 

2002. Its purpose is to 

select, on merit, individuals to be 

recommended to the Scottish 

ministers for appointment to judicial 

office and to make the judicial 

appointments system more open 

and transparent. 

Since its creation, the Board has 

worked hard to bring transparency to 

the selection process and to build a 

system in which the public, the 

profession and the politicians can 

have trust and confidence. A lot of 

progress has been made, but there is 

more work to be done. 

The Board has been given renewed 

authority, strength and purpose 

following the Judiciary and Courts 

(Scotland) Act 2008 which 

established it as an advisory nondepartmental 

body from 1 June 2009. 

There are 10 Board members: a 

judge of the Court of Session, a sheriff 

principal, a sheriff, an advocate and a 

solicitor, and five lay members, one of 

whom is the chairing member. The 

two lawyer and the five lay members 

are appointed by ministers. The three 

judicial members are appointed by 

the Lord President. The Board has a 

small dedicated secretariat of five 

civil servants. 

Fitness for office 

Importantly, the 2008 Act 

reaffirmed the Board’s status as an 

independent body that is not subject 

to the direction or control of any 

member of the Scottish Executive 

or any other person. It also placed 

two specific responsibilities on the 

Board. These are: 

to select, solely on merit, only 

individuals of good character; and 

to have regard to the need to 

encourage diversity in the range of 

individuals available for selection. 

The Board believes that these two 

key principles – merit and diversity – 

are absolutely compatible. They 

underpin the Board’s approach now 

and in the future. 

Successful applicants will be those 

who can demonstrate their fitness 

for judicial office and the Board will 

make its recommendations solely 


on merit. It encourages and 

welcomes applications from the 

widest possible range of applicants 

regardless of professional or social 

background, gender, marital status, 

ethnic origin, sexual orientation, 

political affiliation, religion or 

disability. 

Building on the work of its 

predecessor, the Board continues to 

develop selection processes and 

procedures that are open and 

transparent. In doing so it seeks to 

ensure that it attracts applications 

from people of the highest calibre 

and that the system is fair, accessible, 

and does not present barriers to any 

eligible person wishing to apply. 

Looking back over the first year of 

its statutory existence, the Board has 

already accomplished a great deal. It 

has run two major exercises to select 

individuals for appointment to the 

offices of judge of the Court of 

Session and sheriff. 

For shrieval appointments, the 

new Board has decided to adopt a 

pool of suitable individuals from 

which it will draw when making its 

recommendations to ministers as 

and when required. 

The Board takes into account any 

views the ministers and sheriffs 

principal might have about the nature 

of the post and any particular skills or 

expertise required. In this way the 

Board is able to recommend an 

appropriate individual based on all 

the information available to it about 

the individuals in the pool and the 

requirements of the post. 

The Board has also spent a 

considerable amount of time 

reviewing its processes and 

procedures in light of experience of 

the two exercises it has run. The 

Board recognises that, if people are to 

be encouraged to apply for judicial 

The Board believes that the 

principles of merit and 

diversity are absolutely 

compatible. They underpin 

the Board’s approach 

appointment, the application 

process must be as simple and 

straightforward as possible. 

Demystifying the process 

In October 2009, following a major 

survey of the legal profession, the 

Board published the report 

Continuous Improvement – An Analysis 

of Scotland’s Judicial Appointments 

Process (Journal, November 2009, 28). 

As a result of this survey, the Board 

now has a better understanding of the 

makeup of the “eligible population”, 

what members of the profession 

think of the judicial appointments 

process, the attractions and 

disincentives of judicial office, and 

what encourages people to apply, or 

discourages them. 

One key finding from the survey 

was that people would be more likely 

to apply if they knew more about the 

selection process and what it 

involves. An oft quoted remark by 

respondents was: “They’re not 

looking for the likes of me”. 

A major strand of the Board’s work 

for the foreseeable future will be 

working closely with the judiciary, the 

Faculty of Advocates and the Law 

Society of Scotland to demystify the 

application process and to dispel 

some of the misperceptions that exist. 

As a first step the Board, in 

conjunction with the Society and the 

Faculty, ran a series of awarenessraising 

events last month in a number 

of locations to explain the 

appointments process to members of 

the profession. These were the first 

events of their kind and the Board is 

currently evaluating the feedback 

provided by those who attended. 

The next exercise to select 

individuals for inclusion in the pool 

of candidates to be recommended for 

vacancies in the office of sheriff 

arising in 2011 was advertised on 

2 July. The closing date is 6 August. 

Selection exercises are advertised in 

the press, the professional journals 

and on the Board’s website 

(www.judicialappointmentsscotland. 

org.uk). The selection process 

normally takes around six months. 

Applicants must submit an 

application form (available on request 

or downloadable from the website), 


Feature Judicial Appointments Board 

three examples of written material, 

and the names of three referees, two of 

whom must be legally qualified and 

able to provide an assessment of the 

applicant’s legal knowledge, skills and 

competence and his or her personal 

and judicial qualities. The third referee 

may or may not be legally qualified 

and is only required to comment on 

the applicant’s personal and judicial 

qualities. Referees do not have to be 

High Court judges! 

Applicants are required to have at 

least 10 years’ post-qualification 

experience. The selection process aims 

to assess applicants’ qualities and 

abilities in five broad areas: 

legal knowledge, skills and 

competence; 

intellectual capacity and powers 

of reasoning; 

personal characteristics; 

case management skills and 

efficiency; and 

communication skills. 

Applicants are shortlisted for 

interview on the strength of their 

application form, the written material 

provided and the references submitted, 

using an agreed scoring system. The 

Board will consult the Lord President, 

sheriffs principal, the Faculty of 

Advocates, the Law Society of Scotland 

and the Scottish Legal Complaints 

Commission as to whether they are 

aware of any reason which might 

cause the Board to consider that the 

applicant is unsuitable or unfit for 

appointment to the office for which 

he or she has applied. 

The scoring system used by the 

Board is available to any applicant for 

judicial appointment on request. 

Final selection 

Interviews are normally held in 

Edinburgh. The interview panel 

comprises three lay Board members 

and three judicial or legal members. 

The interview is in three stages. The 

first stage involves the applicant being 

given 45 minutes to study a piece of 

legal material provided on the day. 

This is followed by a 45 minute 

discussion about the legal material 

with the judicial and legal members 

on the interview panel. The lay 

members of the panel are present but 

do not take part in this discussion. 

The purpose of the discussion is to 

assist the legal members of the 

panel with their assessment the 

applicant’s legal knowledge, 

skills and competence. 

The second stage is a 10 minute 

presentation by the applicant on 

a topic given in advance. 

The third stage is a 40 minute 

Board hits the road 

Peter Nicholson went to 

one of the seminars 

presented by Judicial 

Appointments Board 

members last month, to 

see what issues were raised. 

The Edinburgh seminar to 

explain the work of the Board 

attracted a decent turnout 

from the profession – 

interestingly, it seemed to me, 

in much the same proportions, 

from a diversity angle, as 

emerge in applications to the 

Board and its ultimate 

appointments. Probably fewer 

than a quarter of those 

present were female and I only 

saw one person apparently 

from an ethnic minority. 

The holding of the 

seminars perhaps showed the 

Board putting into practice 

how it reconciles its duties of 

encouraging diversity while 

appointing solely on merit: 

when the potential conflict 

was raised in questions, it 

was explained that the Board 

works to make as many 

people as possible aware of 

the opportunities, but in a 

competition it appoints solely 

on merit. 

Sir Muir Russell and Professor 

Andrew Coyle of the Board 

presented on its aims and 

then gave an insight into the 

application process, much as 

described here by Trevor Lodge. 

It might be worth adding that 

fyi 

The scoring system 

used by the Board 

is available to any 

applicant for judicial 

appointment on 

request 

in deciding on the size of its 

approved pool from which it 

will recommend appointments 

to particular vacancies, the 

Board will attempt to match it 

as accurately as possible to the 

number of posts requiring to 

be filled over the coming year, 

to minimise uncertainty for 

those involved. The number of 

applicants invited to interview 

will in turn bear a reasonable 

proportion to the size of the 

pool. So if you don’t make it 

through to the pool, it doesn’t 

necessarily mean you are 

regarded as unsuitable or that 

you shouldn’t enter further 

competitions. 

Feedback to candidates is 

available on request: Sir Muir 

said he phoned anyone who 

asked for it and tried to give 

guidance as to whether they 

might reapply or perhaps 

gain some further career 

experience first. 

In answer to a question 

from the floor, Sir Muir 

confirmed that if a person in 

the pool is not recommended 

for an appointment during 

the year, they would have to 

reapply to be included for the 

following year, although they 

will probably be waved 

through the first stages of 

the selection process. 

Does the Board have an 

“eye towards specialisation”, 

someone asked? So far, it has 

interview focusing on the personal 

and judicial qualities required for 

judicial office. In this discussion the 

whole interview panel will assess all 

of the qualities and abilities 

mentioned above. 

Selection does not depend on 

performance at interview alone. The 

Board makes its decision about an 

applicant’s suitability on the basis of all 

the information about the applicant 

gleaned during the whole process. The 

final decision is made by the full Board. 

The recommendations of 

applicants suitable for appointment 

are made in response to specific 

requests from the Scottish Ministers. 

The First Minister is required by law 

to consult the Lord President on any 

recommendation for judicial 

appointment. It is then for the First 

decided to look for people 

with a broad traditional range 

of skills and abilities; indeed it 

has the impression that those 

with more specialised 

backgrounds are anxious not 

to be categorised. Recognising 

that it is unlikely to be able to 

appoint ready-made judges, it 

seeks people who “delight and 

have a capacity for engaging 

with the law”, as one member 

has put it. In other words, it 

looks for the ability, the 

enthusiasm, the mental set 

that gives confidence that that 

person will do the job. 

What about the set exercise 

at the interview itself? 

Someone wanted to know if it 

takes account of a candidate’s 

experience. The answer is that 

everyone gets the same one 

(the last was on evidence 

requirements), but the panel is 

“looking for an understanding 

of how you use a piece of 

law” and what you bring up 

for discussion, rather than to 

assess whether you got the 

law right or not. 

And what is the situation 

regarding part-time 

appointments? The Board 

members admitted there is still 

quite a long slate of previously 

approved people, and it is 

difficult at present to predict 

future demand, but there may 

be a competition in the first 

half of next year. 

Minister to decide whether to make 

an appointment, or to recommend 

an applicant to the Queen for 

appointment, as the case may be. 

The Board is only interested in 

selecting individuals on merit and 

in encouraging applications from 

people from the widest possible 

background. This can only be 

achieved if people have confidence in 

the system and feel that, if they decide 

to apply, they will be treated with 

fairness and respect. 

I hope this brief description has 

provided some clarification of the 

selection process and will encourage 

the best of those eligible members of 

the profession to apply. 

Trevor Lodge is Chief Executive of the 

Judicial Appointments Board for Scotland. 


A consultation is under way on revised 

information, registration and recording fees 

to eliminate the Registers of Scotland’s operating 

deficit – hastened by the economic downturn 

Background 

RoS operates as a Trading Fund. 

This means that we are entirely 

self-financing, covering our 

expenditure primarily through 

the fees we charge for our 

registration and information 

services. Fees must be set at 

a level that covers costs and 

these levels are set by Scottish 

Ministers by means of orders 

in the Scottish Parliament. 


We announced in our 

2010-13 Corporate Plan 

that we intended to conduct 

a review of both information 

and registration fees 

biennially. The first such 

review is now under way, 

and a three-month public 

consultation on its proposals 

was launched on 21 June. 

The basis for registration 

and recording fees is the Fees 

in the Registers of Scotland 

Amendment Order 2006, 

which amended the Fees in the 

Registers of Scotland Order 

1995. The 2006 Order was 

designed to reduce RoS’s annual 

income by at least 26 per cent, 

in order to reduce the 

reserves then held. 

The regime for 

information fees is set 

out in the Fees in the 

Registers of Scotland 

Amendment Order 2009, 

which also amended the 

1995 Order. The fees 

introduced in 2009 

represented a reduction of 

45 per cent in information fee 

income and were designed 

to reflect costs against volumes 

at that time. 

The economic downturn, 

with the fall in house prices 

and volume of sales combined 

with the reduced fees, has 

resulted in RoS incurring 

substantial annual losses. These 

are larger than planned and are 

not sustainable. The fees 

proposed in the consultation 

paper seek to re-establish full 

cost recovery. A wider financial 

sustainability review is also 

being undertaken to introduce 

greater efficiencies to RoS. 

Proposed changes 

to registration and 

recording fees 

Scottish Ministers propose to 

increase the minimum fee for 

transfer applications submitted 

in paper form from £30 to £60, 

with the ARTL minimum fee 

increasing from £20 to £50. All 

other fee bands will increase by 

20 per cent, except those 

applying to properties for which 

the consideration is greater than 

£1 million, which will remain 

unchanged. These changes will 

see a £240 (ARTL £180) fee for 

an average-priced property 

compared to a £330 fee in 1995. 

The fee for registering or 

recording any deed relating to a 

standard security will increase 

from £30 to £60 for paper 

applications and from £20 to 

£50 for ARTL applications. 

(The 1995 fees ranged from 

£22 to £3,750.) 

Proposed changes 

to information fees 

Scottish Ministers propose to 

increase the standard Registers 

Direct fee from £1.80 plus VAT 

to £3 plus VAT. To reflect the 

costs involved, they also 

propose to introduce additional 

charges of £8 for searches 

conducted by RoS staff from 

Registers 

RoS fees up for review 

Land Register 

certificates 

As part of our support for 

Scottish Government 

environmental initiatives to 

reduce our carbon footprint, 

duplex printing of land 

certificates, office copies and 

other suitable documents will 

be rolled out from July. 

ARTL UPDATE – 

as at 17 June 2010 

26,679 ARTL transactions 

have taken place. 

Live on ARTL: 

335 solicitors’ firms are 

currently on the ARTL system 

26 lenders are currently 

on the ARTL system 

12 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 

A wider financial 

sustainability review 

is being undertaken 

to introduce greater 

efficiencies to RoS 

letter, fax or email requests 

and £12 for those requested in 

person at our customer service 

centres. Nil returns on Registers 

Direct will continue not to 

attract a charge and free access 

to our online Scottish House 

Prices will also be retained. 

Full details of all of the 

proposed charges are set out 

in the consultation paper. Visit 

ros.gov.uk or the consultation 

pages on the Scottish 

Government’s website. 

Consultation responses 

The consultation will run 

from 21 June 2010 until 

10 September 2010. All 

comments received by the 

end of the consultation 

period will be considered 

by Scottish Ministers prior 

to their finalising a new 

Fee Amendment Order and 

laying it before the Scottish 

Parliament. It is anticipated 

that any change in the fees 

that RoS charge would not 

be implemented until the 

first quarter of 2011. If you have 

any queries, please contact Hugh 

Welsh on 0141 306 1513 or 

hugh.welsh@ros.gov.uk . 


Feature Legal Services Bill 

The Justice Committee completed its stage 2 consideration of the Legal Services 

(Scotland) Bill during June, making a large number of amendments while refusing or 

deferring others. Peter Nicholson highlights the most significant matters discussed 

Taking shape 

Abusy summer of talks is in 

prospect, and much could 

yet happen at stage 3 of the 

parliamentary process. 

But the likely final shape of the Legal 

Services (Scotland) Bill is now 

considerably clearer following the stage 

2 sittings of the Justice Committee. 

Many, though by no means all, of 

the changes supported by the Society 

and the profession have been accepted; 

a number of others are to be discussed 

with ministers in what committee 

convener Bill Aitken predicted would 

be a “fairly lengthy and convoluted” 

summer conversation. 

Investors allowed 

Turning first to what has been the 

most divisive issue from the 

profession’s point of view, as things 

now stand external investment in and 

ownership of legal practices is to be 

permitted, subject to majority control 

remaining with solicitors, alone or 

together with “members of other 

regulated professions” – the 51%-49% 

split narrowly approved at the Society’s 

recent AGM. 

No provision exactly enshrining 

the “Dailly amendment”, limiting 

non-lawyer ownership to 25% and 

confining it to individuals working 

within the practice, was moved, but a 

Labour-backed proposal for up to 25% 

external ownership was lost on the basis 

that it was neither enough to satisfy ABS 

supporters nor suitable for small firms. 

Labour member James Kelly however 

indicated that he might seek to raise the 

subject again at stage 3. 

The formula now approved is not 

set in stone. Under a further 

Government amendment, ministers 

can by regulation amend the specified 

percentages, or indeed repeal the 

entire majority ownership section – 

though only if they believe that such 

action would be compatible with the 

regulatory objectives in s 1, and 

“appropriate in any other relevant 

respect”. They will also first have to 

consult the Lord President, the 

Society, every approved regulator, the 

Office of Fair Trading and such other 

persons as they consider appropriate. 

Then there have been changes to 

the “fitness to own” test. On the one 

hand, minority shareholders (with a 

stake less than 10%) can be exempted 

from satisfying a regulator’s full 

fitness-to-own tests. On the other, 

there has been added a provision that 

family, business or other associations, 

so far as bearing on character, are 

relevant in considering fitness to have 

an interest, which Michael Clancy, the 

Society’s Head of Law Reform, 

believes will enable account to be 

taken of potential alliances of sub- 

10% holders. In addition, a nonsolicitor 

investor can now be 

disqualified for behaviour 

incompatible with the regulatory 

objectives or the professional 

principles, or improper 

interference in the provision of 

legal services by the business. 

Independence again 

Professional independence has 

fyi 

A non-solicitor 

investor can now 

be disqualified for 

behaviour incompatible 

with professional 

principles 

been at the heart of the debate over 

alternative business structures, and 

the Society had pledged to seek 

particular amendments to underpin 

the safeguards in the bill. Did it 

achieve these? The Society’s principal 

aim, Clancy says, was to ensure that 

the Lord President was inserted as a 

“constitutional buffer” – a term used 

in the debate – between ministers and 

approved regulators, his consent now 

being essential to the approval by 

ministers of an approved regulator. 

This role now appears in several 

places in the bill, including the 

provisions relating to confirmation 

agents, and making regulations in 

relation to the key positions of head 

of practice and head of legal services 

in a licensed provider, and, says 

Clancy, comprises “a very significant 

bulwark against ministerial 

interference in approved regulators or 

in approving bodies”. 

The Government has also accepted 

some restrictions in its rule making 

powers, which are expressed more 

narrowly and are also subject to 

additional requirements as respects 

consultation. The Society had 

proposed a number of specific 


amendments regarding consultation, 

but there is now an overarching 

requirement in a new section that 

ministers, where they consider it 

appropriate, must consult persons or 

bodies that appear to have significant 

interest in the particular subject matter. 

Much heat was also generated 

on the independence front by the 

original s 92 of the bill, which would 

have conferred a reserve power on 

ministers to specify a minimum 

proportion of lay members to be 

appointed to the Society’s Council, 

and also criteria that some or all of 

them should fulfil. 

At the ABS roadshow in Edinburgh 

in March, the minister, Fergus Ewing, 

announced that he now considered 

this power unnecessary, and it has 

been removed from the bill. But to 

ensure that the new committee (half 

solicitor, half lay) which is to carry 

out the Society’s regulatory functions, 

can operate properly, it can include 

people who would be suitable for 

appointment to Council but have 

not been so appointed; and its 

independence from Council has also 

been strengthened by enabling it to 

appoint subcommittees without 

reference to Council. 

The Justice Committee voted down 

a further Labour proposal that the 

Society be required to set up a 

separate representative council to 

carry out representation functions. 

Extending regulation 

Moving on to matters on which the 

profession presented a more united 

front, a whole new chapter has been 

added to the bill to bring in a system 

of regulation covering non-lawyer 

will writers. The scheme, the first 

of its kind in the UK, is similar to the 

provisions already proposed for 

confirmation agents. 

At the first stage 2 sitting there was 

also an attempt by Labour members 

to bring in regulatory provisions 

covering employment law services 

provided by non-lawyers. The move 

failed, the Government opposing it 

on the ground that it had not been 

consulted on and there was a lack of 

evidence of a problem in this area, but 

cross-party interest was expressed in a 

suggestion that reserve powers might 

be added to permit the Government 

to add by delegated legislation to the 

types of business requiring to be 

regulated. There is as yet no word of 

any such provisions being put forward 

at stage 3. 

Ultimate protection 

Considerable time has been spent on 


the Guarantee Fund and how to 

provide equivalent protection for 

clients of ABS-type firms. MSPs were in 

no doubt that such protection should 

be enacted, but no satisfactory way has 

been found, so the minister told the 

committee, of setting up a separate 

scheme for such concerns. Hence, 

although the Society had held out 

against the possibility of claims on the 

present fund arising from the activities 

of businesses it did not regulate, as 

the bill stands the same fund will be 

available to clients of solicitors’ firms 

and other legal services providers 

alike, whether or not the latter are 

regulated by the Society. 

This may, of course, be less significant 

as long as the 49% limitation on 

external ownership remains in place. 

The minister also made the point in 

debate that as it tends to be the smaller 

practices that give rise to claims, we may 

well find that ABS firms end up being 

net contributors to the fund. Only 

time will tell. 

The Society has succeeded in 

having individual claims on the fund 

capped at £1.25 million, though has 

yet to achieve its further goal of a 

global annual cap on claims. That 

too could be part of the summer 

conversation, though committee 

members were concerned that any 

such ceiling might work in an 

arbitrary fashion. A suggestion that 

A suggestion that the 

Society might have some 

oversight role even for 

practices otherwise 

regulated elsewhere, may 

also be explored further 

Carry on talking 

A number of proposals put 

forward by the Society were not 

supported by the Government in 

committee, the minister taking 

the position that they were 

more than merely technical 

amendments and further 

consultation might be desirable. 

However, they are likely to be 

included in the discussions to 

take place during the summer, 

and could yet be put forward at 

stage 3. They include: 

A power in Council to make 

grants or loans out of the 

Guarantee Fund ahead of a 

claim being finally approved; 

Automatic suspension of 

practising certificate following 

conviction of dishonesty or 

making of a company director 

disqualification order; 

Amendments regarding 

complaints to the Discipline 

Tribunal; 

Levying of fees on an entity 

rather than an individual 

basis; and 

Empowering the Society to 

charge for specific services. 

the Society might have some 

oversight role even for practices 

otherwise regulated elsewhere, may 

also be explored further. 

As an aside regarding who regulates 

whom, no one has seen fit to address 

what some within the profession have 

perceived to be an anomaly, that 

whereas firms not owned solely by 

solicitors can apply to be regulated by 

the Society, there is no corresponding 

provision to enable a traditional 

solicitors’ firm to elect to come under 

the supervision of another approved 

regulator. Presumably this reflects the 

thinking, expressed by the minister in 

other contexts, that those who wish to 

carry on practice as they have done to 

date, should be affected as little as 

possible by the bill. 

Further modifications 

Who should actually be permitted 

to call themselves solicitors was 

also given some attention by the 

committee. Section 90 has been 

amended to provide that the Society 

shall make rules under which it 

would be able to give written 

authority to a licensed practice for the 

use of the term “solicitor”, or any 

name, title, addition or description 

which includes the word, such as 

“Solicitors and Accountants”. 

One concession made by the 

Government was to allow people 

employed by “citizens’ advice bodies” 

to be able to give advice. This had 

been perceived to be a problem 

because of the requirement in s 36 

that a licensed provider be acting for 

fee, gain or reward. Witnesses at stage 

1 hearings had proposed a relaxation 

for the non-profit-making sector 

generally; the definition covers a nonprofit 

making body “with the sole or 

primary objective of providing legal 

and other advice (including 

information) to the public for no fee, 

gain or reward”. 

Asked whether he would highlight 

anything else of significance in the 

amendments already passed, Clancy 

points to the addition of the interests 

of justice to the regulatory objectives 

in s 1. “I think those are key issues 

for the way in which our democracy 

operates in terms of recognition of the 

interests of justice, and subscribing 

to that and to the constitutional 

principle of the rule of law so that we 

keep our eyes on that prize.” 

I am grateful to Michael Clancy, Director of 

Law Reform at the Society, for his help in 

explaining the significance of the amendments to 

the bill. Responsibility for the content of the 

article remains mine. 


Feature Children and crime 

Kenneth Norrie argues that current, and proposed, legislation gives rise to 

anomalies regarding children and criminal records, and puts forward his own 

solution which could be incorporated in the Children’s Hearings Bill 

Criminalising 

The Scottish age of criminal 

responsibility is amongst 

the lowest in the developed 

world. In practice, of course, 

the majority of children who commit 

criminal offences are not prosecuted 

in the criminal courts but are instead 

referred to the children’s hearing: we 

believe (rightly) that a welfarist rather 

than a punitive response is the most 

appropriate way to address a child’s 

offending behaviour. 

The Criminal Justice and Licensing 

(Scotland) Bill 2010, which passed 

stage 2 in May 2010, will raise the age 

at which a child can be prosecuted 

to 12, but it retains the presumption 

that a child under the age of eight 

cannot commit a criminal offence. 

So a child who commits an offence 

between the ages of 8 and 12 cannot 

be prosecuted, but might still be 

referred to a children’s hearing. This 

sounds unobjectionable. However 

the children’s hearing system is not 

purely welfarist and punitive 

consequences do follow, if a child is 

referred on the basis of having 

committed an offence. 

Criminal records 

The main punitive consequence is that 

the child acquires a criminal record: 

the Rehabilitation of Offenders Act 

1974 and the Police Act 1997, which 

established Disclosure Scotland, 

apply. Section 3 of the 1974 Act 

provides that where a child has been 

referred to a hearing on the ground of 


children 

having committed an offence, “the 

acceptance, or establishment (or 

deemed establishment), of that 

ground shall be treated for the 

purposes of this Act... as a conviction, 

and any disposal of the case thereafter 

by a children’s hearing shall be treated 

for those purposes as a sentence”. 

Section 5 of the 1974 Act 

“rehabilitates” the child (that is 

to say treats the child as not having 

committed an offence) after one year 

from the “conviction”, or at the end 

of the period of the “sentence”, 

whichever is longer. The record is, 

for most purposes, expunged. 

The problem lies in the 

exceptions to rehabilitation, 

for criminal records are not expunged 

for the purposes of disclosure 

certificates issued by Disclosure 

Scotland. Anyone applying for 

positions involving caring for, 

training, supervising or being 

in sole charge of persons 

under the age of 18, or 

vulnerable adults (for 

example a teacher, 

nursery worker or foster 

carer), is obliged to 

reveal, through an 

enhanced disclosure 

certificate, their 

“criminal” record – with 

details of all 

“convictions” including 

those “spent” under 

the 1974 Act. 

Depending upon the 


nature of the offence that brought the 

child to a children’s hearing, this might 

reduce or remove entirely the person’s 

chances of employment in any position 

involving children or vulnerable adults. 

Options for change 

The Children’s Hearings (Scotland) 

Bill 2010, which completed its stage 1 

consideration in June, currently 

makes no change to this position, 

though many consultees expressed 

disquiet. In giving evidence to the 

Education, Lifelong Learning and 

Culture Committee of the Parliament, 

the Minister for Children undertook 

to look at the matter again, to ensure 

that the criminal record consequences 

of appearing before the children’s 

hearing were not applied 

disproportionately (see Official 

Report, 5 May 2010, col 3537). 

What amendments might be made 

to the bill at stage 2 (which is due 

shortly)? Here are my own 

suggestions for the minister. 

First, the age of criminal 

responsibility could be raised to the 

age of 16, avoiding the problem 

entirely. Given the Parliament’s very 

recent consideration of the matter, this 

option is unlikely to find favour. In 

any event, it would prevent criminal 

record consequences even for those 

very few children who, by remaining a 

risk to others in adulthood, probably 

do require to be obliged to disclose 

their past behaviour. 

Secondly, the age of criminal 

responsibility (as well as of 

prosecution) could be raised to 12. 

This would restore the natural link 

between responsibility and 

prosecution, without preventing badly 

behaved children under 12 being 

brought to a children’s hearing (on 

grounds other than the commission 

of an offence). It would, however, 

still involve potential criminal 

record consequences for 

children 12 years of age or 

more, and so does not 

address the problem for the 

The problem lies 

in the exceptions to 

rehabilitation, for 

criminal records are 

not expunged for the 

purposes of disclosure 

certificates 

older child with whom it is, perhaps, 

more likely to be an issue. 

Thirdly, given that the crux of the 

problem lies with the Rehabilitation of 

Offenders Act 1974, the simplest 

solution would be to repeal s 3 of that 

Act. Children could continue to be 

referred to the children’s hearing on the 

basis of having committed a criminal 

offence, but the hearing’s outcome and 

its consequences would be entirely 

welfarist and there would be no 

“criminal record” requiring to be 

disclosed. If the child’s behaviour were 

so serious that lifelong criminal 

consequences were justified, that child 

could be prosecuted (if over 12) in the 

criminal courts. To avoid the risk that 

prosecutors would seek to prosecute 

more children than at present, the Lord 

Advocate’s guidance on prosecution of 

children would need to focus on 

protection of others from a child who 

is likely to remain a risk as an adult. 

Fourthly, we might remove the most 

pernicious feature of the current 

system – that the 1974 Act applies to 

grounds that are accepted, often 

without legal advice as to the 

consequences, as well as grounds 

established after evidence – and 

replace it with a rule that rehabilitation 

and disclosure apply only where the 

offence has been established, beyond 

reasonable doubt, in a court of law. 

Though superficially attractive, this 

may well be the least satisfactory of all 

the options, for it would create an 

unacceptable incentive to children to 

accept allegations against them by 

offering them the reward of avoiding 

any criminal record. This would be 

more pernicious than the current 

system, for in order to ensure that the 

child has complete freedom to decide 

whether to accept or to deny the 

grounds, the legal consequences must 

be the same in either case. 

Fifthly, if we accept that some 

children are likely to remain a risk to 

others even when they become adults, 

our focus should be on identifying 

these children and limiting the 

criminal record consequences to them 

alone. Not only would an appropriate 

test need to be determined, but it 

would also require to be decided who 

should make the judgment that the 

child posed a risk. 

If that judgment properly lies with 

the children’s hearing, then an 

amendment to the Children’s 

Hearings Bill could give them the 

power to declare, as a disposal, that 

the child should be subject to the 

terms of the 1974 Act. If the judgment 

is more appropriately left to the 

sheriff, an amendment could require 

all cases in which the child is referred 

to a hearing on the basis of having 

committed a criminal offence to be 

sent to the sheriff for proof, with the 

sheriff being given the power to make 

an order that the 1974 Act 

is to apply. (This would likely 

encourage reporters to avoid the 

offence ground where possible, so 

minimising the number of cases in 

which the issue would arise.) 

In my view, however, the judgment 

best rests with the reporter. The 

offence ground should therefore be 

amended to read something like “the 

child has committed an offence and it 

is likely that the child will remain a 

risk to others in the future”. 

The reporter would then have to 

determine whether both the offence 

and the risk exist, and can be proved to 

exist if denied. If the offence exists but 

the risk does not, for example, in cases 

of an isolated assault in the school 

playground, shoplifting, or act of petty 

vandalism, or incidence of consensual, 

unpressured and non-exploitative 

sexual activity, the reporter could still 

refer the child to a hearing, but on the 

basis of one of the other grounds, such 

as being outwith the control of the 

relevant person, or behaving in a way 

that has serious adverse effects on the 

child or another person (grounds 

65(2)(m) and (n) in the 2010 Bill). 

This is my preferred option. 

Continuing threat? 

It needs to be remembered that there 

are only very few children whose 

offences are such that they are likely to 

continue to pose a threat to others into 

adulthood. The requirements of 

disclosure are designed to warn of 

threats; yet our fear of badly behaved 

children has led the present system to 

assume that society needs protection 

from, and warning about, any child 

(over eight) who commits any offence 

for whatever reason and in whatever 

circumstance. Scotland would be 

better served by encouraging children 

to become full members of society, 

with uninhibited employment 

prospects, even when, as children, 

their behaviour had been 

reprehensible. The system could, if the 

proposal above were accepted, identify 

real risks much earlier. The passage of 

the Children’s Hearings (Scotland) Bill 

gives us an ideal opportunity to do so 

and it is to be hoped that the 

opportunity is taken. 

Kenneth McK Norrie is a Professor of 

Law in the University of Strathclyde 


Feature Family law 

Split decision 

Family law judgments in 

Scotland making front page 

headlines are rare, and rarer 

still when they also form the 

subject of a debate on the Matthew 

Wright show on Channel 5. 

But beneath the media take on 

Lord Woolman’s decision in PH v JK 

or H [2010] CSOH 32 as a judgment 

which would lead to siblings being 

brought up 12,000 miles apart, may 

just be detected a subtle shift in some 

of the orthodoxy which has shaped 

child law in Scotland. And not before 

time, some might argue. 

Certainly, conventional wisdom 

dictated that a court would not make 


A recent Court of Session decision allowed a brother 

and sister to be separated so that each could reside with 

the parent of their choice, although 12,000 miles apart. 

Roger Mackenzie wonders if it heralds a more flexible 

attitude to parenting 

a decision to separate children, least 

of all where it meant an 11-year-old 

boy growing up in Melbourne with 

his father while his 13-year-old sister 

remained in Glasgow with her 

mother. In that respect, we will all 

now have to exercise caution in the 

advice we give clients in residence 

actions where the children’s views as 

to their future upbringing may differ. 

Lord Woolman’s decision regarded 

the preservation of the sibling 

relationship as a central 

consideration, and referred to expert 


evidence which recognised that it 

is important for siblings to stay 

together to give mutual support 

after their parents’ separation. 

However, while acknowledging 

this, he accepted that children’s 

relationships with their parents 

are the primary ones and this 

formed an important 

counterweight. 

Interestingly, there is research 

from the family court in 

Australia, which was not 

presented to the court, that 

challenges the accuracy of 

predictions of dire consequences 

of separating siblings after 

divorce. Indeed, the study 

suggests that adopting such an 

arrangement can sometimes 

foster co-operative parenting, 

insofar as both parents have a 

real motivation to make the 

arrangement work. 

Within discretion 

Central to the decision was that 

it was in accordance with the 

children’s own wishes. The 

decision was subject to an appeal 

to the Inner House (unreported 

at the time of writing), which 

was refused, but one of the 

grounds of appeal was that the 

Lord Ordinary had attached too 

much weight to the views of an 

11-year-old. 

Given that he was at the cusp 

of an age where his view would 

have had to be taken into 

account, and that he had been 

consistent in expressing his 

view, it was within the Lord 

Ordinary’s discretion to take 

that as one of the most 

significant factors in reaching a 

decision. To do otherwise would 

arguably have sent a signal that 

the views of an older sibling 

may prevail even where not in 

accordance with the views 

expressed by the younger sibling 

and where the age difference is 

not significant. 

The case was also novel as 

being one of the first reported 

cases involving repatriation 

rather than relocation. Lost 

somewhere in much of the 

media reporting was the fact that 

this was an Australian family. The 

husband’s job had seen the 

family relocate to Scotland and 

that contract had been extended 

beyond the time originally 

envisaged. Nevertheless, his work 

in Scotland had come to an end 

and his employers were insisting 


he return to Australia. The family 

plan had always been to return to 

Australia where they had retained 

properties, the children were 

enrolled to attend a private 

school, and the parties’ extended 

family all lived. The support 

network of the extended family 

was one of the factors referred to 

in Lord Woolman’s opinion. 

Parenting today 

Yet it might be that the lasting 

impact of the case is as a 

redefining of the role of carer. 

While it was acknowledged that 

up until separation the parties had 

operated what might be viewed as 

traditional roles – the husband as 

breadwinner and wife as carer for 

the children – the father had 

combined a demanding job with 

spending as much time with the 

children as possible, in particular 

at the weekends but generally as 

often as possible trying to be 

home in the evenings to put the 

children to bed. 

Post separation, the children 

had typically spent six nights 

out of 14 with the father (the 

daughter reducing that to four 

shortly after the commencement 

of proceedings), and the mother 

had reverted to full-time work. 

Lord Woolman rejected any 

suggestion that “one parent has a 

significantly different amount of 

time to spend with the children”. 

Again, this formed an element of 

the appeal grounds with the 

suggestion being that the Lord 

Ordinary had failed to give 

weight to the importance of 

maintaining the role of the 

mother as primary carer. 

Given that the post-separation 

arrangements in recent times 

concerning the 11-year-old boy 

had been close to shared 

residence, this was a difficult 

idea to sustain. But perhaps it is 

also recognition that sometimes 

caring involves working and 

earning a living for the family, 

and that the parent, more 

typically the father, should not 

be penalised in a post-separation 

scenario for having taken on 

that role if they are then able to 

manage their work commitments 

in such a way as to allow for 

shared care to be a feasible 

proposition. (Indeed in Australia 

there is a rebuttable presumption 

of equal shared care.) 

The jurisprudence of Scots 

child law remains comparatively 

bereft. The test of what is in a 

child’s best interests allows for 

an exercise of discretion and 

with it an element of judicial 

weighting which inevitably 

allows for societal conventions 

and personal prejudices to 

shape the law and dictate the 

Research from the family court 

in Australia challenges the 

accuracy of predictions of dire 

consequences of separating 

siblings after divorce 

boundaries beyond which 

courts could be expected not to 

stray. Perhaps the demographics 

of child law litigation occurring 

in front of largely male judges 

whose own experiences of 

parenting were maybe a 

generation behind the modern 

concept of fatherhood, had the 

result that the decisions of the 

courts in the past often took a 

narrow view of the definition of 

caring for children. 

As family dynamics change, 

with parents working flexible 

hours or job sharing and the care 

of children as a result often being 

in the hands of both parents 

(and perhaps grandparents too), 

the decision of Lord Woolman is 

a welcome recognition that every 

case should truly be treated on 

its own merits and the old 

presumptions about caring for 

children no longer apply. 

Roger Mackenzie is a solicitor in 

the family law unit at Maclay 

Murray & Spens who acted for the 

father in PH v JK or H. 


Feature Essay winner 

This year’s student essay competition organised by the Society in conjunction 

with the Scottish Parliament took the subject: “Leaving politics to the MSPs, 

which aspect of Scots law would you recommend for consideration and change 

by any committee of the Scottish Parliament and why would it be a good use of its 

time?” This is the winning entry from Suzie May 

Official reports would 

probably list whisky and 

electronics as Scotland’s 

highest yielding exports. 

Unofficially, however, there is an 

export so famous that it is known the 

world over. With as much sting as 

electricity, but holding an appeal for 

all ages that whisky never has, is that 

most famous of wizards, Harry Potter, 

whose literary journey was penned in 

our own capital. 

Even excluding the book and the 

film sales and the endless list of 

memorabilia, Harry Potter has 

magicked up a magnitude of tourist 

revenue for Scotland. A walk down 

Edinburgh’s George IV Bridge would 

take in a café which proudly purports 

to be the birthplace of Harry Potter, 

and a walk down the parallel-running 

Nicolson Street would involve 

passing a sign to that effect. Scotland 

has cashed in on Harry Potter. 

Yet, in another respect, Scotland has 

been unable to cash in on everything 

to do with the lucrative character. 

Another walk may be used to illustrate 

this, this time with his renowned 

author, J K Rowling, and her son. 

Throw in some covert paparazzi and, 

several court cases later, the deficit is 

illustrated. Scotland’s privacy law had 

nothing to offer the family. 

Across the border, following the 

supermodel Naomi Campbell’s 

controversial battle against the press in 

2004, the law of England & Wales has 

developed some strong precedent on 

privacy, leaving Scotland behind. 

Privacy is a difficult common law 

concept in both England and Scotland 

which, in modern times, has been 

truly eclipsed by the doctrine of breach 

of confidence, but common law can 

only develop when there are cases to 

be heard and therefore Scotland is 

currently stuck in a very private rut. 

A committee of the Scottish 

Parliament should be formed to 

tackle the issue head on and 

consider a statutory remedy. 

The necessity for this can be 

explained by tracing the history of 

privacy, the case law in England and 

Scotland, with particular emphasis on 

Campbell’s case Campbell v Mirror 

Newsgroup Ltd 1 and Rowling’s case 

Murray v Express Newspapers plc 2 , and 

by reference to the UK Parliament’s 

own report on privacy, with the 

conclusion that there is no other 

option or better use of a committee’s 

time. While privacy covers a wide 

range of matters, such as privacy of the 

person, this essay will focus on 

informational privacy only, or what 

the English courts refer to as the 

misuse of private information. 

Comparatively, Scotland is 

in a weak position. With no 

statute to refer to, case law 

must be examined to find a 

modern position on privacy 


026-29 Feat Essay + Licensing1007rev 8/7/10 11:17 Page 27 

*** 

In England, up until recently, privacy 

was classified as an equitable wrong 

and not a tort. In Scots law, aspects 

of privacy have long been 

recognised, such as professional 

privacy which can be found as far 

back as 1709 in the Statute of Anne – 

also known as the Copyright Act. 

More recently, protection of 

privacy and information has become 

more important because the 

channels through which information 

can be collected and distributed have 

become more numerous, with the 

internet having an ever increasing 

involvement in daily life. 

Furthermore, the introduction 

of the Human Rights Act in 1998, 

ratifying the European Convention 

of Human Rights (ECHR) into the 

laws of the United Kingdom, has 

significantly affected whole areas 

of the law, including privacy. Of 

particular consequence is, on the one 

hand, article 8 of the ECHR which 

protects the right to respect for private 

and family life, and article 10, on the 

other, which protects freedom of 

expression. Cultural and technological 

developments should be reacted to 

by the law in order to maintain an 

effective system and this has not yet 

happened with protection of privacy, 

especially in Scotland, and this should 

not remain the case. Privacy needs to 

be brought into the present, after a full 

consideration of its past, in order to 

make it best suited for the future. 

It was trite law that the law of 

England contained no general tort of 

privacy, most recently affirmed in the 

judgment of Wainwright v Home 

Office 3 in 2003. Shortly after, 

however, there began a pattern of 

more radical law. The pivotal 

judgment came in the form of 

Campbell v Mirror Newsgroups Ltd 4 . 

The litigation, which reached 

the House of Lords, concerned 

photographs secretly taken of Naomi 

Campbell as she left a narcotics 

anonymous meeting. These were then 

published in a newspaper under the 

somewhat conspicuous title “Naomi: 

I am a drug addict”. Campbell is a 

public figure, who has enjoyed a 

“long and symbiotic relationship 

with the media” 5 , and these photos 

were taken in a public place and thus 

there should have been no problem. 

However, the photos were found to 

fall under one branch of privacy law: 

namely wrongful disclosure of private 

information. 

As Lord Nicholls described, this 

subdivision covers “the familiar 

competition between freedom of 


Above: winner Suzie 

May was presented 

with her prize at the 

Parliament by Jamie 

Millar and Deputy 

Presiding Officer Trish 

Godman MSP 

expression and respect for an 

individual’s privacy” 6 . On the one 

hand, the Mirror’s freedom of 

expression was backed by its 

assertions that the public had the 

right to know of Campbell’s lies 

about her drug use because she had 

consistently declared that she did not 

take drugs, unlike so many of her 

contemporaries. Respect for an 

individual’s privacy, on the other 

hand, has been more closely 

safeguarded since the introduction of 

the Human Rights Act 1998. By a 

narrow majority of three to two the 

House of Lords created a new tort 

which has become commonly known 

as the misuse of private information. 

The significance of this decision 

is considerable. It meant that the 

law of privacy went from a largely 

unformulated concept to a concrete 

precedent in the form of misuse of 

private information, opening the 

door for other cases to follow. 

*** 

Cases have followed and, in 2004, 

Murray v Express Newspapers plc 7 was 

heard in the High Court. This was an 

action brought by J K Rowling and 

her husband on behalf of their young 

son for invasion of his privacy 

following photographs which were 

taken and published of him as he was 

pushed down a street in his buggy. 

Their case was struck out in the 

High Court but the Court of Appeal 

granted their appeal. It was held that 

a child has a right to privacy which is 

separate from that of each of its 

parents but which can be affected by 

the extent to which the parents 

choose to have their child in the 

public eye. The right to privacy is 

decided by the test of legitimate or 

reasonable expectation and then 

whether rights under articles 8 and 10 

of the European Convention of 

Human Rights have been infringed. 

Murray v Express Newspapers plc was 

brought to court after Campbell had 

been decided. Indeed it was the first 

such decision to follow in Campbell’s 

footsteps. However, the case should 

have been heard in Scotland. After all, 

that is where the alleged invasion of 

privacy occurred and where the 

litigants are resident. The reasons for 

this somewhat unusual decision are 

simple. Although the occurrence 

happened on Scottish ground, the 

jurisdiction for publication was 

elsewhere. Furthermore, with the 

advancements in English law, the 

outcome in Scotland would have 

been uncertain whereas in England, 

while it was by no means 

indisputable, the result of Campbell 

was that there was a defined tort 

which could form the basis of the 

Murrays’ argument. Murray has 

confirmed that the English courts will 

be willing to follow Campbell and the 

tests which were devised in that case, 

and so it can be seen that the English 

tort of misuse of private information 

is flourishing. 

Comparatively, therefore, Scotland is 

in a weak position. With no statute to 

refer to, case law must be examined in 

order to find a modern position on 

privacy. Unfortunately, this endeavour 

does not prove particularly fruitful 

either. In the drought of Scottish privacy 

cases there are few which can be 

pointed to. X v BBC 8 involved a 

pursuer, aged 17, attempting to prevent 

footage of her that was filmed by the 

BBC being aired. While this could have 

proved to be a seminal case on the law 

of privacy it instead became more of a 

question of setting aside the pursuer’s 

agreement with the defenders on the 



Feature Essay winner 

Brian Dempsey’s monthly 

survey of consultations that might 

be of interest to practitioners 

… the point 

is to change it 

Better public record keeping 

The Keeper of the Records of Scotland has issued a 

consultation document as part of a drive to improve the 

quality and usefulness of public records generated or received 

by public bodies. One example where there is said to be a 

need for improvement is in relation to children looked after by 

local authorities, a need exposed by the Shaw Report on The 

Historical Abuse Systemic Review of Residential Schools and 

Children’s Homes in Scotland 1950-1995. See the document 

at www.scotland.gov.uk/resource/doc/315831/0100450.pdf . 

Respond by 4 August to business.management@nas.gov.uk . 

Preventative public spending 

The Parliament’s Finance Committee seeks views to inform its 

inquiry into “how public spending can best be focused over 

the longer term on trying to prevent, rather than deal with, 

negative social outcomes”. See www.scottish.parliament.uk 

/s3/committees/finance/inquiries/preventative_call.htm . 

Respond by 27 August to finance.committee@scottish.parliament.uk in 

about four sides of A4 paper. 

Registers of Scotland fee increases 

Fees in relation to the Registers of Scotland (RoS) have, by s 25 

of the Land Registers (Scotland) Act 1868, to be set on the 

basis of cost recovery. The current fees were set before the 

economic crisis and as a result, for example, of the reduction 

in house sales, RoS have incurred “substantial losses”. 

Proposals include increasing the minimum fee for applications 

such as dispositions submitted in paper form from £30 to 

£60, with the ARTL minimum fee increasing from £20 to £50. 

See www.ros.gov.uk/feereview2010/feereview2010.pdf for the 

consultation documents. Respond by 10 September with a completed 

respondent information form to feereviewconsultation@ros.gov.uk . 

Parliamentary probity 

The Parliament’s Standards, Procedures and Public 

Appointments Committee seeks views on proposed 

changes to categories of interests that MSPs are required 

to register, such as remuneration, sponsorship and gifts. 

See consultation document at www.scottish.parliament. 

uk/s3/committees/stanproc/reports-10/stprr10-04.htm 

Respond by 14 September to sppa@scottish.parliament.uk . 

And briefly… 

As noted last month, views are sought on the voluntary 

accreditation scheme for property managers (see Quality 

in Common at www.scotland.gov.uk/Resource/Doc/ 

311576/0098311.pdf and respond by 10 August to 

housing2admin@scotland.gsi.gov.uk). 


basis of her age and lack of capacity 

when the document was signed. 

As time goes by, without a Scottish 

privacy case, it seems like the law is set 

to become less and less certain. The 

Scottish courts may well follow the 

English precedent but it is unlikely that 

a pursuer will choose to be a 

metaphorical “lab rat” for Scotland, 

whereas if a pursuer has the 

opportunity to bring their case in 

England or Wales then they have the 

comfort of a more settled law of privacy 

and hence a more settled outcome. 

*** 

The UK Parliament’s Culture, Media 

and Sport Committee released its 

report on Press Standards, Privacy 

and Libel in February 2010. Its 

conclusion on the law of privacy is that 

it should remain how it is and “should 

continue to be determined according 

to common law, and the flexibility that 

permits, rather than set down in 

statute” 9 . This was considered 

especially important in light of the 

relatively recent introduction of the 

Human Rights Act 1998, which should 

be given time to develop under the 

common law. 

Significantly, however, its conclusion 

is based on the belief that the law 

relating to privacy will “become clearer 

as more cases are decided by the 

courts” 10 . This is in stark contrast to 

the Scottish position where recent 

cases have been few and far between 

and, unless there is a dramatic change 

made to the law, privacy in Scotland 

will continue to stagnate while it flows 

freely in England and Wales. 

Protection of privacy has, in some 

form, long been recognised in the 

laws of Scotland, England and Wales. 

However, with the introduction of 

the Human Rights Act 1998 and 

developments in the ways 

information can be circulated, the 

time has come for modernisation. 

While the UK Parliament has 

shown itself willing to watch from the 

sidelines as the Human Rights Act 

plays out its effects on the common 

law, it can afford to do this because of 

recent case law such as Campbell 

which has substantially strengthened 

the English position on privacy. The 

Scottish Parliament cannot afford to 

wait for a case which may never arise 

in order to formulate a contemporary 

law of privacy. As a small jurisdiction 

compared with its neighbour, 

Scotland should consider the 

implementation of a statute, either 

mirroring the English position or 

containing necessary differences, in 

order to prevent the continuation of 

uncertainty which has for so long 

characterised the Scots law of privacy. 

While a statute would inevitably do 

away with a degree of the flexibility 

which exists under the common law, 

it is this writer’s considered assertion 

that a degree of certainty is of greater 

importance to the law of privacy at 

the moment. Therefore, the Scottish 

Parliament Committee for Education, 

Lifelong Learning and Culture should 

look into the matter of privacy or 

preferably a subject Media 

Committee should be set up. 

Scotland cannot afford to wait 

any longer for the case which may or 

may not resolve the weighty issues 

surrounding invasion of privacy, but 

must instead make use of its devolved 

statutory powers or else face a 

continuous catch-up with England 

and Wales, their footprints among the 

desert of cases already beginning to 

fade into the distance. 

Suzie May is a third year law 

student at the University of Edinburgh. 

Prior to university, she went to Bearsden 

Academy in East Dunbartonshire. 

During her third year of the LLB she 

studied delict, tax and trusts & 

succession, and in fourth year she plans 

to study contract and labour law. 

Notes 

Bibliography 

Press Standards, Privacy and Libel, 

report by the Culture Media and Sport 

Committee 

Campbell v Mirror Newsgroup’s Ltd 

[2004] UKHL 22; [2004] 2 AC 457; 

[2004] 2 WLR 1232 

Murray v Express Newspapers Plc 

[2008] EWCA Civ 446; [2009] Ch 481 

(CA (Civ Div)) 

Wainwright v Home Office [2003] 

UKHL 53; [2003] 3 WLR 1137 

X v BBC 2005 SLT 796 

Footnotes 

1: [2004] UKHL 22; [2004] 2 AC 457; 

[2004] 2 WLR 1232 

2: [2008] EWCA Civ 446; [2009] Ch 481 


3: [2003] UKHL 53; [2003] 3 WLR 1137 

4: [2004] UKHL 22; [2004] 2 AC 457; 

[2004] 2 WLR 1232 

5: [2004] UKHL 22 at p 674 per Lord 

Hoffmann 

6: ibid at p663 

7: [2008] EWCA Civ 446; [2009] Ch 481 


8: 2005 SLT 796 

9: Press Standards, Privacy and Libel, 

report by the Culture Media and Sport 

Committee, para 67 

10:ibid. 



Feature Licensing 

“Duty to 

trade”revisited 

From time to time the argument is aired that a licence holder has a duty to trade 

throughout the hours stated in the operating plan. Tom Johnston 

is clear that there is no such obligation 

Ihad thought the question of 

whether there is a duty to 

trade in licensed premises 

had died, but it still raises its 

head from time to time. 

At a recent well-attended Scottish 

Licensing Law and Practice 

conference only one clerk out of many 

present was of the view that such a duty 

existed. It would be very interesting to 

cross examine the pro-duty lobby on 

precisely what they believe the scope 

of the “duty” to be and why. 

Those who believe there to be 

some form of duty put forward 

various arguments. First, they point 

out that the 1976 Act expressly 

provided that there was no 

requirement for premises to be open 

during the permitted hours. There is 

no such provision in the 2005 Act. 

In my view, that holds no water 

whatever. It is stretching things to 

breaking point to seek to apply the 

expressio unius, exclusio alterius 

doctrine of statutory interpretation to 

two statutes passed by two different 

Parliaments some 30 years apart. In 

the 2005 Act there are no longer 

“permitted hours”. Hours of trading 

are one of the many facets of a licence 

regulated by the operating plan. 

They point to certain comments 

made by a Scottish minister during the 

passage of the 2005 Act, comments 

which were replicated to an extent in 

the Guidance for Licensing Boards 

issued by the Scottish Government 

under s 142 of the Act. That section 

permits the Scottish ministers to “issue 

guidance to Licensing Boards as to the 

exercise of their functions”: it does not 

permit them to change the legislation. 

Note 68 points out that breach of 

fyi 

See also p42 

for the licensing 

briefing from Tom 

Johnston 

conditions of an operating plan may 

result in an application for review 

of the premises licence. Notes 69 

and 70 point out that there may 

be circumstances which could 

reasonably cause deviation from the 

hours given in the plan. These include 

bereavement, illness, holidays, weather 

and lack of demand. 

Boards are enjoined to adopt a 

commonsense approach. There is 

undoubtedly an implication that 

failure to open would be a breach of 

the terms of the plan; however, only 

one piece of guidance is given. 

“Licensing Boards should consider 

whether these ‘unused’ hours are 

If Parliament had intended 

there to be a duty to trade 

at all times specified in the 

plan, it could have said so 

preventing new entrants into the 

market. If so, consideration should be 

given to changing the operating plan 

of the premises concerned.” It is nigh 

on impossible to imagine a situation 

where short hours trading in premise 

A could be a valid ground of refusal 

of an application in respect of 

premise B. If premise A ceases to be 

used for the sale of alcohol, then the 

licence will cease to have effect. 

Otherwise issues of overprovision are 

restricted to consideration of 

numbers of licences and capacity. 

The third argument turns on an 

interpretation of sched 3, para 2(1) to 

the 2005 Act, which provides that: 

“Alcohol is to be sold on the premises 

only in accordance with the operating 

plan”. Jack Cummins deals with this 

lucidly in Licensing (Scotland) Act 

2005, his annotation of the Act. Put 

simply, the question is whether the 

word “only” is used in a permissive or 

mandatory sense. If a statute is 

capable of interpretation in two ways, 

it must be presumed that the 

draftsman did not intend it to have 

nonsensical results. The Government 

guidance makes it clear that if there is 

such a duty, it is not absolute. If it is 

not absolute, where are the precise 

terms of the duty to be found? 

If my operating plan says that I 

intend to provide bar meals, dance 

facilities and adult entertainment, am I 

obliged to provide these throughout the 

range of hours when the board decrees 

these to be permissible? Do I face 

prosecution or suspension if I close my 

kitchen at two instead of 2.30, if I cancel 

my dinner dance one Saturday, or the 

Chippendales fail to turn up? Of course 

not. The fact is that my operating plan 

contains that which I may do, 

permissions not duties. Interpreted 

accordingly, sched 3 makes perfect 

sense. If Parliament had intended there 

to be a duty to trade at all times 

specified in the plan, it could have said 

so. It has said no such thing, neither in 

the Act itself, nor in its guidance notes. 

In these cash-strapped times, if a 

pro-duty licensing board makes this 

an issue which falls to be decided in 

the courts, it will lose. I hope the 

ratepayers call for the board members 

to pay the expenses themselves. 

Tom Johnston, Young & Partners LLP, 

Dunfermline and Glasgow. 


Professional news Society 

The Solicitor General 

welcomes new entrants 

Pictured above are the 61 new 

solicitors welcomed to the 

Society at the June Admissions 

Ceremony, with their families. 

Solicitor General Frank 

Mulholland QC, delivering the 

welcoming address, told the 


entrants that many of the people 

they represented would be in 

difficulty or crisis and would look 

to them to be their champion. 

His eight practical tips for 

success included: never stop 

learning; be courteous and 

Cadder talks 

continue 

As the Journal went to press, talks 

between the Society and the 

Scottish Government were 

continuing over the Lord 

Advocate’s interim guidelines to 

chief constables on the presence of 

a solicitor during interviews with 

detained suspects, and the 

question of legal aid payments to 

the attending solicitor. 

The issue of whether the 

guidelines conflict with the code 

of conduct provision that 

instructions can only be accepted 

direct from the client remains 

unresolved. Crown Office has so 

far agreed to adjust the guidelines 

to the extent that, failing the 

availability of the suspect’s 

nominated solicitor, the duty 

solicitor should be contacted 

ahead of the PDSO; and rather 

than the suspect simply being 

asked whether telephone advice 

would be acceptable, the police 

will try and set up a call by the 

suspect to their solicitor so that 

an informed decision can then 

be made whether to call the 

solicitor out. 

As for legal aid, the 

Government has accepted the 

principle that solicitors will be 

compensated under legal aid for 

being called out; points to be 

clarified include what constitutes 

“out of hours” for the purposes of 

payment; the application of the 

duty to check eligibility; and the 

appropriate fee benchmark. 

While the point has not been 

concluded, it is likely that the 

regulations when made will 

include backdating of payments 

for cases that remain current when 

they come into force. 

The Lord Advocate’s guidelines are 

published at www.copfs.gov.uk/Publications/ 

2010/06/LAGuidelines . The decision in the 

Cadder appeal will be delivered by the UK 

Supreme Court on 20 October. 

respectful to everyone you work 

with, and to your opponents; 

look after your work-life 

balance; always aim to provide 

the highest quality; seek and 

take advice; take an interest in 

people; and don’t be parochial. 

News 

in brief 

September 

SGM date set 

This year’s Special 

General Meeting of the 

Society will be held on 

Friday 24 September at 

10am in the George 

Hotel, George Street, 

Edinburgh. The 

deadline for any 

requisitions for this 

SGM is Friday 

13 August. The 

recommendation for 

the practising 

certificate fee for 2010- 

11 will be considered 

at the meeting. 

Employment 

judges 

The Lord President has 

appointed Rosemary 

Sorrell, Mark Mellish 

and Alan Masson as 

fee-paid employment 

judges of the 

employment tribunals 

in Scotland. 

Council by-election 

Airdrie 

Notice is given that there is 

to be a by-election for the 

Society’s Council constituency of 

the sheriff court district of Airdrie. 

Any member who has a place of 

business in this constituency and 

wishes to be nominated for this 

election can obtain a nomination 

form from David Cullen, Registrar 

at the Society (email 

davidcullen@lawscot.org.uk). 

The deadline for nomination 

forms is noon on 27 August 

2010 and the election date is 

noon on 15 September 2010. 

Other vacancies 

There are vacancies in the 

Council constituencies of 

Greenock; Dumfries, 

Kirkcudbright & Stranraer; 

and Campbeltown, Dunoon, 

Oban, Fort William & Rothesay. 

Any member with a place of 

business in these constituencies, 

if interested in being co-opted 

onto Council, please contact the 

Society’s Registrar, David Cullen. 

Researchers 

seek ethnic 

minority 

subjects 

The Law Society of Scotland has 

commissioned Blake Stevenson, a 

social research consultancy, to 

conduct research to examine the 

experiences of ethnic minority 

background solicitors within the 

legal profession in Scotland. 

Evidence suggests that the 

proportion of 


Glasgow are debate 

champions again 

Glasgow Academy have won the 

Society-sponsored Donald Dewar 

Debating Tournament for Schools 

for the second year running, after 

a keenly fought final held in 

the debating chamber of the 

Scottish Parliament. 

The winning team of Seamus 

McGuigan and Oscar Lee (right 

of centre in photo) collected the 

tournament trophy and £1,000 

for their school. 

Collecting the runners-up prize 

of £250 for their school were 

Gavin Todd and Adam Brand of 

Craigmount High School, 

Edinburgh (left of centre). The 

judges also commended the 

performances of the other 

solicitors who come from an 

ethnic minority background is 

steadily increasing – 6% of 

Scottish law students starting 

their degrees in 2002 were 

identified as being from minority 

ethnic backgrounds. However, 

the 2006 Law Society study 

suggested that minority ethnic 

lawyers were significantly less 

likely to be equity partners than 

their white colleagues, and that 

solicitors of an ethnic origin 

other than white were more 

likely to have suffered 

discrimination at work. 

This research aims to gather 

and examine qualitative data 

about the experiences of 

minority ethnic solicitors, while 

taking into account that their 

experiences within the 

profession will also be 

influenced by other factors, such 

as location, age, gender 

and length of postqualifying 

experience. 

The research 

will focus on the 

experience of 

practising solicitors, 


finalists, Jenny House and Ujani 

Basu, of St Margaret’s School for 

Girls, Aberdeen, and Michael 

Weir and Miriam Malek, from 

Madras College, St Andrews. 

This year the Society teamed up 

with the Scottish European 

Educational Trust to engage the 

schools in issues relating to 

Europe. The finalists had to speak 

for or against the motion “This 

House believes that the European 

Way of Life is preferable to the 

American Dream.” 

Also pictured are members of 

the judging panel, and Deputy 

Presiding Officer Trish Godman 

MSP (fifth from right), who 

chaired the debate. 

but will also explore the 

experiences of those in other 

roles, such as law students, 

trainee lawyers, and paralegals. 

Blake Stevenson is currently 

looking for volunteer solicitors, 

trainees, paralegals and students 

interested in participating in the 

research, which will involve oneto-one 

interviews and focus 

groups with ethnic minority 

solicitors, from a range of 

companies and legal sectors; a 

focus group with ethnic minority 

trainees; interviews and focus 

groups with white solicitors and 

trainees; and three focus groups 

with law students. 

It is anticipated that the 

research will take place over 

July, August and September. All 

information gathered during the 

research will be non-attributable. 

If you fulfil any of the criteria outlined 

above and are interested in participating 

or would like further information about 

the research, please contact Sophie 

Ellison, consultant at Blake Stevenson at 

sophie@blakestevenson.co.uk or on 

0131 335 3700. 

Law reform update 

Legal Services (Scotland) Bill 

Stage 2 of the bill is now complete. A 

considerable number of amendments 

were debated and a number of points 

which the Society had previously raised 

with both civil servants and MSPs were 

taken on board. 

The most significant of these include: 

the addition of the promotion of the 

interests of justice to the regulatory 

objectives; the addition of client 

confidentiality and ethical behaviour to 

the professional principles; an enhanced 

role for the Lord President in the 

appointment of approved regulators; a 

requirement for at least 51% of licensed 

legal services providers to be owned, 

managed and controlled by solicitors 

or other regulated professionals; and 

the creation of a regulatory scheme for 

will writers. 

Stage 3 will commence in September 

after the Scottish Parliament’s summer 

recess. For more information, go to the 

ABS section on the Society’s website or 

email katiehay@lawscot.org.uk . 

Children’s Hearings 

(Scotland) Bill 

The stage 1 report was published on 

9 June. The Education and Lifelong 

Learning and Culture Committee 

identified a number of specific issues that 

it thought required to be given further 

consideration, including the role and 

powers of the National Convener, the 

definition of a relevant person and the 

child confidentiality provision, but 

recommended to the Parliament that the 

general principles of the bill be agreed. 

The bill was passed at the stage 1 

debate on 16 June. The Society’s Family 

Law Subcommittee raised a number of 

concerns in relation to the bill in its 

response to the initial call for evidence 

and intends to raise them in more detail 

at stage 2, which will begin in September. 

Registration of company charges 

The Company Law Subcommittee 

recently responded to the Department for 

Business Innovation and Skills 

consultation which makes proposals to 

revise the current scheme for the 

registration of company charges. 

The consultation considers what 

charges should be registrable, time limits 

for registration, and the consequences 

of both registration and of the failure 

to register, as well as registration 

procedures. The UK Government aims to 

provide a response to the consultation by 

the end of September. 

Proposed Long Leases 

(Scotland) Bill 

The Scottish Government is consulting 

on a bill to protect the interests of 

tenants under residential ground leases 

of more than 175 years’ duration who 

are potentially at risk of losing their 

homes, by converting the tenancies to 

outright ownership. This will complete 

the process of land reform which 

began with feudal abolition. The 

Conveyancing Committee’s response 

recommends the exclusion from the bill 

of long leases of strips of land creating 

wayleaves for pipes and cables, and of 

substations and other public facilities. 

It also suggests some form of 

mechanism to consider applications for 

conversion to outright ownership of the 

tenant’s interest in certain leases which 

would not qualify as long leases. 

Double jeopardy consultation 

The Scottish Government considers that 

there should be an exception to the rule 

of double jeopardy on the basis of 

tainted evidence or a subsequent 

confession. This follows Scottish Law 

Commission recommendations. 

The consultation paper considers 

only whether there should be an 

exception on the basis of new 

evidence. The Criminal Law Committee 

has responded on the basis that there 

should be a new evidence exception, 

where such evidence is compelling. 

Consultation: 

self-directed support 

The Mental Health and Disability Law 

Subcommittee and the Employment 

Law Subcommittee have jointly 

responded to this Scottish Government 

consultation. The proposals set out in 

the consultation aim to give people 

who receive social care services more 

choice and control, including direct 

payments, allowing them to purchase 

their own services. In their response, 

the committees were supportive of the 

principles behind the proposals and 

recognised the value in giving 

individuals greater autonomy. However, 

they also outlined some serious 

concerns about the implications of the 

proposals, particularly in the area of 

employment law. 

A number of law reform committees 

are also currently considering 

responses to the following bills and 

consultations: the Criminal Sentencing 

(Equity Fines) (Scotland) Bill, the 

Domestic Abuse (Scotland) Bill, the 

Commissioner for Victims and 

Witnesses (Scotland) Bill, the Wildlife 

and Natural Environment (Scotland) 

Bill, the consultation on Planning 

Obligation and Good Neighbour 

Agreement Regulations 2010, the 

consultation on tree preservation 

orders, the Environmental Impact 

Assessment Regulations 2010 

consultation paper, and the 

consultation on revised national 

guidance on child protection. 

More details on these will be 

reported in future editions of the 

Journal. For more information on any 

of the above, please contact 

lawreform@lawscot.org.uk . 


Professional news Society 

Specialist 

accreditations 

Agricultural 

Re-accredited: LEWIS KERMACK, 

Turcan Connell (accredited 4 May 

2005); COLIN M CLARK, Pagan 

Osborne (accredited 16 May 2005). 

Child 

Re-accredited: SARA L MATHESON, 

HBJ Gateley Wareing (Scotland) LLP 

(accredited 26 May 2005). 

Construction 

GORDON INNES, Gillespie 

MacAndrew (accredited 17 May 

2010). 

Employment 

ERIC J GILLIGAN, Brodies LLP MNP 


Re-accredited: DAVID MELVILLE 

BURNSIDE, Paull & Williamsons 

LLP (accredited 29 June 1990); 

MARTIN S STEPHEN, Wright, 

Johnston & Mackenzie LLP 


Family 

Re-accredited: ANNE HALL DICK, 

Mowat Hall Dick (accredited 1 

February 1995); LISA GIRDWOOD, 

Bonar Mackenzie (accredited 20 

January 2000); SANDRA MARY 

SUTHERLAND, Thorntons Law LLP 

(accredited 22 March 2000); 

GRAHAM HARDING, Thorntons Law 

LLP (accredited 19 April 2000); 

LORNA GILMORE BUCHAN, Patience 

& Buchan (accredited 19 June 2000). 

Personal injury 

EWAN B McGILLIVRAY, Morton 

Fraser LLP (accredited 3 June 2010). 

Trusts 

SUSANNE N BEVERIDGE, Brodies 

LLP MNP (accredited 4 May 2010). 

Re-accredited: ALASTAIR G 

DORWARD, Miller Hendry 

(accredited 27 January 2005). 

Last chance for 

constitution 

views 

Consultation on the proposed 

revisions to the Society’s 

constitution closes on Friday 

23 July. Matters under discussion 

include the size and composition 

of Council, standing orders in 

relation to general meetings, 

and the role of the board. 

A paper will be brought to the 

Society’s Council on 6 August with 

the aim of bringing the revised 

constitution to the September 

SGM for members’ approval. 

To access the proposals, see 

www.lawscot.co.uk/about/ 

constitution.aspx 


Honours 

for Tyre 

and Giles 

Two prominent Scots lawyers 

were honoured in the 

Queen’s birthday list 

published last month. 

Court of Session judge 

Lord Tyre, who, as Colin 

Tyre QC, recently served as 

President of the Council of 

Bars and Law Societies of 

Europe (CCBE), has been 

made a Commander of the 

Order of the British Empire 

(CBE) for services to the 

administration of justice. 

Lord Tyre also served as a 

member of the Scottish 

Charity will 

campaigns 

gear up 

again 

The two schemes under which solicitors 

can offer to prepare wills for clients 

without charging a fee, if the clients make 

a charitable donation, are preparing for 

this year’s campaigns. 

Will Relief Scotland runs again in 

September, in support of five Scottish 

based charities specialising in relief and 

development work in the world’s most 

deprived countries: Blythswood Care, 

based in Evanton, Ross-shire; EMMS 

International, based in Edinburgh; 

Mary’s Meals, based in Dalmally, Argyll; 

Mission Aviation Fellowship, based in 

Glasgow; and Signpost International, 

based in Dundee. 

To join up, or for further information, contact 

Blythswood Care, Deephaven, Evanton, Ross-shire 

IV16 9BR (t: 01349 830 777; e: danny.muschate@ 

blythswood.org), or Graeme Pagan, Neaveton, 

Rowan Road, Oban PA34 5TY (t: 01631 563737; e: 

graeme@willreliefscotland.co.uk). To date Will Relief 

Scotland has raised more than £76,000. 

UK-wide Will Aid runs again in 

November, for the benefit of nine 

Law Commission. 

He was joined in the list by 

Olivia Giles (above), the 

solicitor who lost both hands 

and feet following an attack 

of meningitis and who, with 

the aid of prosthetic limbs, 

now dedicates herself to 500 

Miles, a charity that makes 

artificial limbs for Zambia 

and Malawi. She becomes 

an OBE “for charitable 

services, particularly to 

disabled people”. 

charities: ActionAid, British Red Cross, 

Christian Aid, Age UK, NSPCC, Save the 

Children UK, Sightsavers, SCIAF 

(Scotland) and Trocaire (Northern 

Ireland). Last year’s campaign raised a 

total of £1.25 million, more than 

£150,000 of it from Scotland. 

For more information, call Will Aid on 01460 

271182 or email sue@willaid.org.uk . Will Aid has 

teamed up with Certainty, the National Will Register, 

to offer free registration for Will Aid clients. 

Glasgow 

conference on 

legal education 

“Funding Legal Education in a 

Post-Recession UK” is the title of 

a conference to be held in the 

University of Glasgow’s School of 

Law on Thursday 9 September. 

The agenda will include a 

discussion of the role of legal firms as 

trainers and will compare the route to 

qualification south of the border. 

Speakers to date include consultant 

trainer and author Melissa Hardee, 

Dr Andrew Cubie, a speaker to be 

confirmed from a training provider in 

England & Wales, Liz Campbell of the 

Law Society of Scotland and John 

Hamilton of the Faculty of Advocates. 

For further information contact Douglas Mill on 

0141 330 3168 or email d.mill@lbss.gla.ac.uk . 

News 

in brief 

Diligence reforms: 

admiralty actions 

On 1 July 2010, part 

14 of and sched 4 to 

the Bankruptcy and 

Diligence (etc) 

Scotland Act 2007 

came into force by SSI 

2010/249, making 

changes to legislation 

pertaining to the 

arrestment of ships 

and cargo. 

The Act defines 

when arrestment of a 

ship or its cargo will 

be competent, sets out 

the jurisdictional limits 

of the sheriff when 

granting a warrant 

to arrest, provides 

new definitions of 

“admiralty action” and 

“maritime lien”, and 

makes provision for 

expenses. 


From the Brussels Office 

ECJ: no reduced 

VAT for legal aid 

Since 1991, France has been 

applying a reduced rate of 

5.5% VAT to services rendered 

by lawyers in the context of 

partial or full legal aid. The 

Commission alleged that this 

breached Directive 2006/112 

on the common system of 

value added tax. In its defence, 

France argued first that this 

reduced rate of VAT was 

required to ensure access to 

justice, and secondly, that the 

services concerned the “supply 

of… services by organisations 

recognised as being devoted 

to social wellbeing by member 

states and engaged in welfare 

or social security work”. In 

case C-492/08 the court held 

otherwise, pronouncing that 

the reduced rate put France in 

breach of its obligation under 

the directive. 

Financial institutions 

scrutinised again 

The European Commission 

seems determined to improve 

the behaviour and pay 

schemes of those working 

within financial institutions, 

particularly those who have 

a role in risk management, 

governance and taking 

decisions with potentially 

broader systemic effects. 

A Green Paper on 2 June 

Notifications 

Entrance certificates 

Issued during May/June 2010 

ALLISON, Stephen Melville 

BLACK, Julia Jean Isobel 

BOWMAN, David Robert 

BROWN, Caroline Ruth 

BROWN, John Edward 

BUCHANAN, Stewart Thomas 

CAIRNS, Ruth 

CHUNG, Yumann Murray 

COMFORT, Christopher 

Robert 

DAVIDSON, Kathryn 

Margaret 

DEVINE, Catherine Alice 

DICKERS, Jane Pauline 


launched a public consultation 

(closing 1 September) on a 

range of issues from pay and 

incentive structures to the 

composition and functioning 

of boards; the role of auditors 

and supervisors; and the 

exchange of information that 

is important to risk 

management. 

Landmark new 

procedural rights 

In a historic move, on 16 June 

the first step of the Roadmap 

for strengthening procedural 

rights in criminal proceedings 

was completed. This was the 

first criminal justice measure 

to be adopted under the codecision 

procedure, by which 

the European Parliament holds 

equal decision making power 

with the Council. The new 

directive will guarantee the 

rights to interpretation and 

translation of any EU citizen 

facing criminal proceedings in 

another member state. It will 

apply from when the accused 

person is made aware that he 

is suspected or accused of 

committing an offence until 

the proceedings are concluded 

(including the sentencing and 

appeal stages). The next stage 

in the Roadmap will be a 

proposal on the rights of 

accused persons to 

information about their rights 

DONNELLY, Rachel 

Alexandra 

DURIE, Lucy 

EASTON, Angus David 

GILMOUR, Simon George 

GORDON, Leanne 

GRANT, Gemma Louise 

GRAVELLE, Alan Joseph 

GRAY, Joanne Louise 

GUILD, Nicola 

HENDRY, Nicola Maureen 

HUGHES, Benjamin Francis 

HUSSAIN, Mohammed Imran 

JAKOB, Sylvia Felicitas 

(the “letter of rights”), due to 

be released this summer. 

MEPs examine 

reform of Brussels I 

The European Parliament is 

soon to give its view on what 

is needed to reform the 

Regulation 44/2001 (“Brussels 

I”) which clarifies the rules on 

jurisdiction, recognition and 

enforcement of judgments in 

civil and commercial matters. 

This is in response to a 

consultation published by the 

Commission last year, which 

highlighted the need to remove 

the remaining obstacles to the 

free circulation of judgments 

and protect European citizens 

and companies when they 

litigate against parties 

domiciled in third-country 

states. It supported the 

abolition of all intermediate 

measures in recognising 

judgments, provided sufficient 

safeguards were retained for 

the protection of judgment 

debtors. It also proposed 

allowing the courts having 

jurisdiction on the substance of 

a case to stay proceedings 

where they considered that a 

court of another member state 

or third country would be 

better placed to hear the case. 

A legislative proposal from the 

Commission is envisaged by the 

end of 2010. 

KINROY, Lisa Paterson 

LEATHEM, Joanne Waters 

LEWIS, Helen Susanna 

McCABE, Laura Anne 

McCONNELL, Lorraine 

McEACHEN, Philip Alexander 

McKENZIE, Scott David 

MACLEOD, Rhona Napier 

MACNEILL, Lindsay MacLeod 

McPHERSON, Kirstin 

McWHIRTER, Jennifer 

MARSHALL, Rebeca Claire 

MELVILLE, Gillian Carol 

MILLER, Lauren Victoria 

MILTON, Mary Lawrie 

MOFFAT, Jill Evelyn 

MOON, Rachel Elizabeth 

MUIR, Elizabeth Mary 

NICOL, Lorraine 

RENNET, Fiona 

RICHARDSON, Amanda 

Frances 

ROBERTSON, Blair Andrew 

ROBERTSON, Eilidh Lesley 

RODGERS, Rachel Elizabeth 

RUSSELL, Gillian Claire 

SANGSTER, Stephanie Aileen 

SEMPLE, Heather Anne 

SHERIDAN, Paul Watt 

SMITH, Ceiriog Osian 

TALBOT, Henrietta Edith 

Matheson 

TEECE, Laura Ann 

THURSTON, Sarah Frances 

WATSON, Nicky-Ray 

WHALEN, Carla 

Obituaries 

WILLIAM JEFFREY McMILLAN STEWART, 

Clarkston 

On 24 May 2010, William Jeffrey 

McMillan Stewart, employee of the 

University of Stirling, Stirling. 

AGE: 51 

ADMITTED: 1981 

JAMES GILDEA, SSC, Airdrie 

On 30 May 2010, James Gildea SSC, 

formerly partner of Gildeas Ltd, Airdrie 

AGE: 70 


DAVID GEORGE ROBERTSON (retired 

solicitor), Edinburgh 

On 30 May 2010, David George 

Robertson, formerly partner and latterly 

consultant of the firm Young Robertson & 

Co, Edinburgh. 

AGE: 87 


RONALD PATRICK BONNAR (retired 

solicitor), Airdrie 

On 7 June 2010, Ronald Patrick Bonnar, 

former partner of McWhinney, McGregor 

& Co, founding partner and latterly 

consultant of Bonnar & Co, both Airdrie. 

AGE: 72 


Protocol reminder 

At a recent meeting of the preaction 

protocol group (which is 

made up of both solicitors and 

claims managers), it was agreed 

to remind solicitors that medical 

agency fees are not an agreed 

allowable outlay under the 

protocol scheme. 

Applications 

for admission 

May/June 2010 

BONELLIE, Susan 

BURNS, Lisa 

ELFELLAH, Hanah 

GIBSON, Fiona 

JARVIS, Anne-Claire 

MURRIN, Peter 

RUSSELL, Clare 

SJOSTEN, Eva 

TAYLOR, Carla 

THOMSON, Rachel 

TURNER, Bruce 


Professional practice IT 

Last November, the 

Journal featured 

Scottish solicitors 

who operate in a 

virtual environment. 

New possibilities 

have since emerged 

for those who need 

help to take this 

leap, as Peter 

Nicholson reports 

The world of virtual practice is ever 

changing, and new options are 

emerging to enable solicitors to 

share practice costs even from a 

traditional office. 

Just Do Law is the creation of 

Edinburgh and Glasgow firm 

Morisons and its IT arm morisons IT 

solutions limited (www.m-i-t-s.com), 

a company set up as Morisons found 

its clients needing help with IT 

infrastructure as well as contractual 

matters, which it could provide by 

working with a growing network of 

specialist partner businesses. 

In late June, following a pilot 

scheme tested by a group of lawyers – 

some redundant, some on maternity 

leave, together with some trainees 

and students – Just Do Law was 

officially launched. 

Based on the notion that lawyers 

want to be freed of administration 

and compliance work in order to 

focus on what they trained for, it 

works as a pay-as-you-go service 

with a menu of options either as 

individual components or a complete 

office support package, depending 

what the client lawyer (or firm) 

wishes to do for themselves. 

Integral to the system is Lawcloud, 

case management software provided 

by LawWare which comes in different 

versions depending on your type of 

practice. Lawcloud, along with 

compliance, website, cashroom, and 

money laundering components, can 

be taken out separately or as a £995 a 

month complete package. Telephone 

answering is also available at highly 

competitive rates. 

It’s all done through technology the 

potential of which many lawyers still 

have only a hazy grasp. Individuals’ 

computers act as “dumb terminals”, 


Join the 

i.e. points of access only, as all data is 

held on a secure server dedicated to 

legal practices, with two levels of 

backup in the case of a failure. 

It means that files are accessible to 

the relevant support service, so that 

on-the-spot help is available. Under 

the cashroom service, for example 

(for which the partner is the business 

run by former Law Society of 

Scotland chief accountant Les 

Cumming), the system can show 

entries, adjustments, trial balances, do 

income tax etc, check that cleared 

funds are available for cheques, and 

instruct a cheque to print out in the 

client solicitor’s office. And an 

accountant is on hand if needed. 

Collective strength 

Alan Stuart is a Morisons partner and 

a director of its IT offshoot. With 

solicitor Raymond McLennan he 

cloud 

They maintain 

that the 

Lawcloud 

“look and feel” 

levels the 

playing field 

between large 

and small firms 

– giving the 

latter access 

to similar 

sophistication 

explained how, in addition to the 

“laptop lawyer” (another brand name 

belonging to Morisons’ company), 

the service can support more 

traditional firms. One solicitor about 

to become a sole practitioner due to 

partner retirals is taking up the full 

package – instantly achieving a big 

saving by not replacing his cashier 

who is also about to retire. 

Do you fancy being a “bubble 

lawyer”? It’s the term for one who 

works in a firm’s premises but 

independently under an arrangement 

to use their facilities, perhaps coming 

out of the “bubble” if needed to take 

on some of the firm’s excess work. It’s 

just one of the ways of working that 

Just Do Law can readily support. 

Stuart, in fact, sees great potential 

for his firm’s platform supporting the 

profession as ABS becomes a reality. 

Cost efficiencies are only part of it: a 


“community atmosphere” could be 

generated with the platform as a forum 

for the exchange of ideas, a chatroom 

or a locum register (especially suitable 

for the unemployed). 

“Lawyers aren’t very good at 

business development, but we could 

hold monthly meetings, show them 

how to run a business, and provide 

opportunities for cross pollination.” 

Perhaps, McLennan added, it could 

provide the catalyst for the birth of 

new virtual practices, developing 

from individuals in different 

locations sharing files. 

In fact, they maintain that the 

Lawcloud “look and feel” levels the 

playing field between large and small 

firms – giving the latter access to 

similar sophistication to what their 

bigger cousins can afford. 

And, Stuart concludes, in the 

potential age of Tesco law, is this not 

what the profession needs in order 

to respond? After all, how will a 

Tesco lawyer operate if not through 

such a platform? 

Become a consultant 

A different business model again is 

offered by Mark Harrison of Flexlaw 

(www.flexlaw.co.uk), formerly known 

as e-litigate. After over four years 

operating as a sole practitioner in a 

virtual environment, he has now 

realised his ambition to put the IT 

platform in place to support a 

consultancy network, and in May 

took on his first consultant, Claire 

O’Neill, who logs on to his network 

and works from her home. 

With the infrastructure to support 

quite rapid expansion, Harrison is 

now open to approaches from those, 

probably at senior solicitor through 

to junior salaried partner level, who 

have some work following that they 

can bring to the firm – though this 

may become less essential in future if 

the Contact Law client referral service 

run by Thomson Reuters, which he 

has found a good source of business 

since signing up a few weeks ago, 

continues to bring in a good return. 

Having got one consultant up and 

running, he reckons it will be relatively 

straightforward to add others. His 

consultant’s contract and office 

manual are now in place, the latter 

covering formatting and saving of 

documents, time recording, mail, and 

cashroom, among other things. A daylong 

session with Claire O’Neill was 

enough to get her using his system, 

and he has the ability to deliver remote 

instruction on her own computer to 

deal with the relatively few integration 

issues that have arisen since. 


Don’t miss 

in this 

section 

IT: The virtual 

environment 

34 

Risk management: 

Roadshow 

36 

Ask Ash: Advice 

column 

38 

Alan 

Stuart 

Raymond 

McLennan 

Mark 

Harrison 

What is more 

important than 

how you do 

business is 

whether you 

have a good 

website – 

that is, an 

interactive one 

and not just a 

“brochure” 

In return for a fixed annual fee to 

cover outlays such as software licences, 

and a percentage of the fees billed by 

the consultant, Harrison provides 

the support of being part of a firm 

(including Master Policy cover), and at 

the same time the IT platform through 

which the consultant can work more or 

less independently. He suggests it is a 

“risk-free endeavour” for those unsure 

about the volume of work they will be 

able to bring, since their dues to the 

firm are based on the work they fee. 

He too has moved into the 

computer “cloud” – data is now 

held securely by others and he no 

longer has to maintain and back up 

his own servers. 

While his practice has been civil 

court based up to now, and that 

remains his main focus, Harrison is 

already in talks with solicitors from 

other disciplines, and recognises that 

his set-up allows such lawyers to join, 

with the possibility of work being 

cross-referred from one consultant to 

another as necessary. 

His verdict on his experience to 

date? “I see this as a good example of 

how a small practice can expand and 

market in the modern world.” 

Fourteen years on 

Anyone wondering how to make a 

virtual practice work should have 

been at the Society’s conference on 

7 May, when English solicitor Andrew 

Woolley was one of the key speakers. 

Woolley’s claim is to have set up 

the first virtual law firm – back in 

1996, when most practices were just 

waking up to the potential of email 

and the internet. Not that he is some 

kind of geek – his presentation was a 

deliberately provocative, down-toearth 

tale from someone who just 

wants to do the things he likes 

doing, which in his case means 

doing lots of talks, and practising as 

little law as he can. 

He also had plenty to say of 

relevance to those who will be 

occupying a physical office for the 

foreseeable. For example, he said that 

what is more important than how you 

do business is whether you have a 

good website – that is, an interactive 

one and not just a “brochure”. Does it 

provide answers to questions? Can it 

do fee quotes? Is there a “contact us” 

link from every page? Since on his 

figures about 70% of clients come in 

via the web, at an average cost to the 

firm of £9 compared with £600 per 

client for newspaper advertising, you 

really want to be able to convert these 

enquirers into clients. 

Also, if you are in an office and want 

More on virtual practice (also www.journalonline.co.uk)> 

Journal, November 2009, 12: Nicholson, “Outside of the box” 

to expand but can’t afford a bigger 

place, why not get people to work 

from home? Supervision depends 

on systems, not presence, he said, 

pointing to his experience as a junior 

lawyer when he was basically left to do 

his own thing. If people show low 

competence (in terms of the law plus 

such rules as you choose to judge them 

by), and low commitment, they have 

to improve – or else. 

Give ’em what they want 

This was no technical talk about 

networks or the like. Just on where 

his people are (mostly round the 

Midlands, but spread from Truro to 

Great Yarmouth to Derby), what they 

do (family law now – he sold the 

e-commerce part, would you believe, 

because Tesco and the like were 

moving in), and how they work. 

As regards this last, Woolley is 

strong on trusting and incentivising 

people. “We have total flexi-time and 

flexi-holidays”, he said. “If you can’t 

trust them to work the hours, sack 

them.” In fact, he added, his only 

problem is making people take their 

holidays. But his top biller last year 

had 11 weeks! 

Another incentive is offering 

people a £10,000 bonus to do 

their own typing (he doesn’t have 

secretaries, but doesn’t rate digital 

dictation either). You still save 

money. And give them a return tied 

to the value of bills paid. 

Woolley is also keen on focusing 

on what you’re trained to do. So don’t 

attempt your own marketing (maybe 

that’s why so many lawyers’ websites 

are poor). He spends a lot on 

marketing – 12% of gross fees – but 

then he doesn’t have offices to pay 

for. Someone comes in to do his 

management. He outsources money 

laundering checks, for about £4 a 

time, unless it’s high-risk work. 

And he gets the money in. Why do 

we make it hard for clients to pay? he 

asked. Give them an online facility. 

He sends bills by email, with a link to 

click in order to pay – 40% do the 

same day, and 87% within seven days. 

That doesn’t include fixed fees paid 

up front. Not only that, come the 

autumn he will only be taking on 

clients who can pay online with a 

debit card. But he plays hardball 

with suppliers on payment terms. 

Not a man to let doubters stand in 

his way (especially if the problems 

they throw up have only a small 

chance of happening), his solution is 

simple – you can’t afford to keep 

them. J D I, one slide proclaimed 

starkly. Just Do It. 


Professional practice Risk management 

Calum MacLean of Marsh considers the lessons 

emerging from this year’s Risk Management Roadshow 

Combating claims 

in interesting times 

Coinciding with a UK general 

election, ongoing volcanic ash 

cloud disruption, the threat of 

economic contagion from other 

parts of Europe and, closer to (a 

solicitor’s) home, the lively ABS 

debates and the administration 

of major professional indemnity 

insurer Quinn Insurance – this 

year’s Risk Management 

Roadshow undoubtedly took 

place during “interesting times”. 

The economic uncertainties 

also continue to make for 

“interesting times” in terms of 

risks faced by law firms, and 

many of the case studies 

presented for discussion in 

this year’s Roadshow focused 

on current and emerging risk 

issues, alongside some of the 

perennial problems. 

The messages to take away 

from this year’s Roadshow include 

the following: 

Be alert to 

mortgage fraud 

Lender claims remain an 

area of concern for 

insurers and the Society’s 

Insurance Committee. 

Several factors are at play: 

higher numbers of 

borrower defaults as a 

result of the credit crunch; 

increasing evidence of 

mortgage fraud; and 

allegations of failure to 

comply with lenders’ 

reporting requirements. 

The messages emerging 

from discussion of three 

case studies in the 

Roadshow materials were: 

be alert to unusual aspects 

of a transaction; be fully 

aware of lenders’ reporting 


requirements; report any unusual 

or suspicious circumstances 

to lenders. 

A number of the possible 

warning signs flagged in the case 

studies are highlighted in a 

“Financial Compliance update” 

issued by the Society on 23 June. 

The full text of this update is 

reproduced in the Roadshow 

reference materials. These can be 

downloaded from Marsh’s website 

(www.marsh.co.uk/lawsociety). 

Assess effectiveness of 

notice procedures 

One of the consequences of the 

recession is that many businesses 

are keen to get out of leases that 

were entered into in more 

favourable economic conditions. 

Unfortunately, landlords are 

equally keen to hold on to their 

tenants wherever possible, and 

Practice notes – Commercial Property 

BREAK NOTICES 

Norisk & Co 

Solicitors & Estate Agents 

Fee earners must always comply with the following 

procedures when serving notices. Great care must be 

taken when serving any form of notice under a lease 

which must comply with the terms of the notice 

provisions in the lease. 

1. Ensure that you are instructed in sufficient time to 

be able to serve the notice timeously. 

2. Check the notice provisions carefully and make 

sure you comply with them to the letter. Do not 

take it for granted that all notice provisions 

contain the same requirements as in our styles. 

3. Take particular care to check the method of service. 

4. Always double check your instructions, especially 

if not received directly from the client. 

5. Ensure you confirm the identity of the landlord. 

6. Check the address details of the landlord. 

7. Make sure you serve the break notice on time, in 

accordance with the terms of the lease. 

therefore, where a break option is 

exercised, it is likely that the notice 

will be scrutinised thoroughly, and 

any deficiency in the notice or its 

service seized upon. There is, 

consequently, a heightened risk 

for solicitors acting for tenants in 

relation to break options. 

Effective systems and 

procedures which can help to 

manage this type of risk do not 

have to be high-tech or complex. 

Delegates were invited to 

consider a fictional firm’s practice 

note (see below, left), setting out 

procedures to follow when 

drafting and serving break notices 

for tenant clients, and comment 

on how effective the procedures 

were likely to be and 

whether/how they 

could be improved. 

While this may 

be a good starting 

point, it could 

be made 

more 

effective if 

developed as 

a checklist, 

with clear 

and specific 

action 

points. For 

example, it 

might include a “check 

point” (see above). 

Learn from claims 

Where a claim is made 

against a firm, something 

positive can be gleaned 

from the experience. 

Rather than simply 

moving on and trying to 

ignore the fact that it 

happened, an analysis of 

the circumstances of the 

Confirm the identity of 

the landlord by: 

• verifying against latest 

rent notice 

• requesting confirmation of 

landlord details from client 

• undertaking a property search 

• [……] 

• [……] 

• undertaking a Companies 

house search 

claim can identify possible gaps 

in the firm’s systems and 

procedures, and has the potential 

to address problems which could 

otherwise have led to similar 

mistakes arising in the future. 

To emphasise the point, 

delegates were presented 

with a scenario taken from the 

latest module of the Marsh 

e-learning for solicitors 

(www.marsh.co.uk/lawsociety): 

Philippa is a partner in the firm 

of McVitie Simmers & Bronte. 

Following a spate of critical date 

claims, the firm has undertaken 

an audit of a number of files to 

review how critical date issues are 

being handled across the firm. 

Extracts from Philippa’s audit 

notes on a 

randomly 

selected 

trust & 

executry 

file are 

reproduced 

opposite. 

Which of 

the possible 

action 

points (listed 

on the right 

and at the 

foot of the 

screen image illustration) would be 

most effective in reducing the risk 

of further claims in relation to 

serving notice of agricultural 

tenancy bequests? 

Log on to the Critical Dates 

e-learning module to complete 

this exercise online, or access a 

suggested answer to this, and 

the other questions in this year’s 

Roadshow by downloading the 

materials – in each case available 

on www.marsh.co.uk/lawsociety 


(username and password 

available on request). 

Maintain a comprehensive file 

A number of the panel solicitors, 

in their introductory address, 

emphasised the critical 

importance of maintaining a 

comprehensive file in the 

prevention and successful 

defence of claims. Although a 

perennial theme in discussions 

at successive roadshows, 

delegates recognised that this 

may be particularly important 

at a time when some clients, 

having signed up to deals in 

very different economic 

circumstances, may now be 

seeking to revisit the terms of 

the contract and looking for 

someone to blame. 

Delegates were asked to 

consider what they would look 

for on the file in the following 

case, which might assist in 

defending the potential claim, 

and what they might do in 

similar circumstances to reduce 

the risk of a claim arising in the 

first place. 

Mr Tweedy, proprietor 

of Chelsy Tractors Ltd, is a 

longstanding client. Over a 

business lunch he informs you 

that his rival, Mr Serge, who 

owns Luxury Limos Ltd, has 

agreed to sell up. Mr Tweedy 

wants you to handle the deal. 

“Just the legal side – we’ve 


already agreed terms”, he 

explains. 

Mr Tweedy subsequently 

emails details of the deal from 

which you draft heads of terms 

which are subject to a series 

of minor amendments in 

negotiation with Mr Serge’s 

solicitor before being signed by 

the parties. 

The deal drags on longer than 

Mr Tweedy had anticipated, and, 

when it eventually completes, the 

signed share purchase agreement 

includes a number of last minute 

amendments. 

Some months later, the post 

brings a letter from Harridges 

Solicitors, whom Mr Tweedy has 

now instructed, in relation to a 

dispute with Mr Serge over the 

final balancing payment under 

the terms of the agreement. It 

appears that the drafting of the 

payment mechanism is 

somewhat ambiguous and Mr 

Serge and Mr Tweedy cannot 

agree on its interpretation. 

At this stage Harridges are 

looking for your comments, but 

the clear inference is that, in the 

event that Mr Tweedy has to pay 

anything more than he thinks is 

due, he will be looking to you to 

reimburse him. 

One of the options considered 

in response to this case study 

was to decline to take on the 

work on an “execution only” 

basis, given the potential 

complexities of the deal. 

Alternatively, if taking the work 

on, the emphasis was on clearly 

setting out the limited scope 

of work in the letter of 

engagement, which should be 

kept on file. Was it made clear to 

Mr Tweedy, for instance, whether 

or not he was being advised on 

the terms of the payment 

mechanism? If not, was he 

advised to get specialist advice 

on its terms? 

Consider whether (written) 

confirmation should have been 

obtained from Mr Tweedy that he 

had checked and was happy with 

the terms of the final form share 

purchase agreement and 

acknowledging that it no longer 

reflected the heads of terms 

previously agreed? 

Evaluate risks/rewards 

Attracting new business is 

particularly important in a tough 

business environment. There can 

Calum MacLean and Marsh 

be a temptation, however, to 

take on work which, in different 

times, you might have declined. 

Cyril Grubb is approached by 

established client Widgets2u Ltd, 

seeking advice on a refinancing 

for their English subsidiary. The 

loan and guarantee documents 

are all to be subject to English 

law. Cyril hasn’t advised clients on 

an English law matter before, but 

as he has undertaken several 

similar transactions in Scotland, 

he is happy to take on the 

instruction from Widgets2u. 

What transaction vetting issues 

should Cyril Grubb have 

considered? Would your answer 

be any different if the only 

unfamiliar aspect of the 

transaction had been an EU 

competition law issue? 

In both situations it would 

appear that Cyril may risk 

straying into unfamiliar areas of 

law/practice if he takes the 

work on. In the first example, 

there is also a risk that he 

would not have cover under the 

Master Policy unless he could 

satisfy insurers that he was 

“demonstrably competent” in 

the English law matter in 

question. Advising on EU 

law, on the other hand, 

would be covered under the 

Master Policy. 

If Cyril did not want to 

decline the new instruction, 

he could have considered 

subcontracting the specialist 

aspects of the work to a 

solicitor with the relevant 

experience. 

A full set of materials from the 

Roadshow can be accessed by logging on 

to the Marsh solicitors’ website 

www.marsh.co.uk/lawsociety 

Calum MacLean is a former solicitor in private practice who works in the FINPRO 

(Financial and Professional) National Practice at Marsh, the world’s leading insurance 

broker and risk adviser. For a user name and password to access the Marsh solicitors’ 

website, contact calum.maclean@marsh.com . 

The information contained in this article provides only a general overview of 

subjects covered, is not intended to be taken as advice regarding any individual 

situation and should not be relied upon as such. Insureds should consult their 

insurance and legal advisers regarding specific coverage issues. 

Marsh Ltd is authorised and regulated by the Financial Services Authority. 


Professional practice Advice 

What to do if 

financial problems 

threaten your work 

performance, and 

potentially your 

career? 

Dear Ash, 

I have got myself into a financial 

mess after splitting up with my 

partner and this is having a 

detrimental effect on my ability 

to concentrate at work. 

I am constantly worrying 

about how I’m going to pay my 

bills and am increasingly using 

the internet at work as a way of 

distracting myself from my 

problems. I have also begun to 

skip lunch and make excuses for 

not attending staff nights out in 

order to save money. 

Consequently my friends at 

work have started to become 

more distant as they assume I 

don’t want to socialise with 

them any more. I’m embarrassed 

about revealing my financial 

position to anyone but I am 

concerned that I may be en 

route to losing my job and 

isolating my friends even further. 

At a recent meeting, my 

line manager expressed his 

unhappiness about the quality 

of my work and warned that I 

needed to put in more effort. I 

am finding it difficult to cope as 

I understand that if I get made 

bankrupt I won’t be able to 

practise as a solicitor? 


Ask Ash 

ASH replies: 

In the current credit climate, I am 

sure you will not be the only 

one with financial worries. 

Unfortunately, when you are in a 

good job with a relatively good 

wage, there is a perception that 

you must be financially 

comfortable and not many admit 

it if they are not. Solicitors also 

have the added pressure of 

ensuring they remain solvent as 

this is an inherent condition of 

their practising certificate. You are 

caught in something of a catch 

22 situation, for if you continue 

to hide your financial position, 

this may just delay your eventual 

insolvency, and you may lose 

your job due to the stress and 

pressures of your situation. 

You would be automatically 

suspended from the roll of 

solicitors if you enter into a trust 

deed or are sequestrated, though 

you can then apply to be given a 

restricted practising certificate 

and the Society will consider 

each case on its merits. 

(Intending trainees are similarly 

considered with regard to 

whether they should be granted 

an entrance certificate.) For 

further information contact 

registrar@lawscot.org.uk 

It is imperative that you 

address your financial problems 

for the sake of your health and 

wellbeing. You may feel that 

your situation is hopeless at this 

point but that is not inevitable. 

You may even be able to find a 

way of avoiding becoming 

insolvent. I suggest first that you 

take some annual leave in order 

to focus on dealing with your 

situation. Then try to arrange an 

appointment with either the 

Citizens Advice Bureau or an 

independent financial adviser in 

order to go through your current 

income and outgoings. The CAB 

can arrange to speak to your 

creditors on your behalf in order 

to agree lower payment 

arrangements. This could help 

with the level of your current 

outgoings and prevent creditors 

taking any further action against 

you in the meantime. 

As well as dealing with your 

outgoings, also try to increase the 

level of your income by perhaps 

considering taking in a lodger/ 

subtenant to share your 

rent/mortgage. 

Finally, try to ensure that you 

seek some form of support 

through this difficult time, 

whether in the form of opening 

up to friends or perhaps 

contacting LawCare for 

confidential, free advice. Their 

website www.lawcare.org.uk has a 

section dedicated to stress and 

depression (among other topics). 

Dealing with your problems 

head on should allow you to 

focus better on other areas of your 

life such as work, as you will have 

more clarity and hopefully more 

confidence about the future, no 

matter what it holds. 

“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: 

peter@connectcommunications.co. 

uk or mail to Studio 2001, Mile 

End, Paisley PA1 1JS. Confidence 

will be respected and any advice 

published will be anonymised. 

Please note that letters to Ash are not 

received at the Law Society of Scotland. 

The Society offers a support service for 

trainees through its Registrar’s 

Department. For one-to-one advice contact 

Katie Meanley, Manager in the Registrar’s 

Department, on 0131 476 8105/8200, or 

katiemeanley@lawscot.org.uk 


Professional briefing Civil court 

Party 

confidential 

An action of damages not subject to time bar, and the principles 

that apply when a party seeks to keep their address confidential, 

are among the more unusual matters considered by Sheriff 

Lindsay Foulis in this month’s civil court roundup 

Citation 

In Chief Constable, Northern 

Constabulary v A 2010 GWD 19-373 

an interim sexual offences prevention 

order and the summary application 

in terms of which the interim order 

was granted were delivered to the 

defender by police officers. There was 

no authority for such service. Sheriff 

Principal Young determined that the 

purported citation was irregular. 

Citation required to be by post or 

officer of the court. Police officers 

were not officers of court. Regular 

citation required not only delivery of 

a copy of the writ upon a party but 

also the delivery of various forms. 

The order was granted in absence 

and the defender appealed. The 

issue then was whether the defender 

appearing at the appeal cured the 

defect. The sheriff principal, after 

considering authority, concluded that 

the critical question was what is 

meant by “appear” and “appearance” 

in rule 2.17(1) of the summary 

applications rules, and the 

corresponding provisions for ordinary 

cause, summary cause and small 

claims. He did not consider that the 

taking of an appeal prevented arguing 

irregularity of citation. Appearance by 

a defender meant the lodging by him 

of a notice of intention to defend, 

or in the context of a summary 

application, appearing or being 

represented at the initial hearing. 

He was however inclined to the 

view that lodging an application for a 

time to pay direction could constitute 

appearance. The object of all citation 

was to bring to the knowledge of the 

defender the proceedings which were 

impending against him in order that 

he might have time and opportunity 

to take the necessary steps to protect 

his interests. If the defender took the 

opportunity to take one of the steps 

which the citation was designed to 

afford him, he ought not thereafter 

to be entitled to plead an irregularity 

in the citation. 

Delay 

In Rennie v Lothian Health Board [2010] 

CSOH 61; 2010 GWD 17-328 an 

action had been raised for damages for 

medical negligence arising from the 

birth of a child in 1980. The action 

was raised in 2006. The child was 

and would always be incapax. The 

defenders took a plea of mora and also 

sought that the action be struck at on 

the basis of unreasonable delay. In 

considering the plea of mora Lady 

Clark acknowledged that account 

The sheriff principal did not 

consider that the taking of an 

appeal prevented arguing 

irregularity of citation 


could be taken of events both before 

and after the action was raised. She 

further observed from authority that 

mere lapse of time will not found an 

effective plea of mora. The remedy 

provided by the law for delay lay in the 

various prescriptions and limitations. 

However, if in addition to the lapse of 

time, there have been actings or 

conduct fitted to mislead, or to alter 

the position of the other party to their 

detriment, the plea of mora may be 

sustained. But for such a plea to receive 

effect, her Ladyship considered that 

there must have been excessive or 

unreasonable delay in asserting a 

known right, coupled with a material 

alteration of circumstances, to the 

detriment of the other party. It did not 

arise in the present litigation. If such a 

plea was upheld, decree of absolvitor 

was the appropriate disposal. 

Turning to the Tonner v Reiach and 

Hall point, focus required to be 

applied to the period since the raising 

of the action. Her Ladyship 

considered that the issues involved 

were complex. The pursuer, a curator 

bonis appointed in 2001, required to 

explore and advance the claim, with 

the inevitable restrictions and delays 

involved with legal aid. There was 

substantial adjustment by both 

parties. There were at least five 

consultations with five different 

experts on behalf of the pursuer. This 

was not unusual and often in the 

course of this work the case was 

clarified and developed. It had 

resulted in the averments of fault 


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Book review: 

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Professional briefing Civil court 


which now formed the only basis of 

the present action being focused in 

October 2009. Her Ladyship did not 

consider this unusual in the context 

of a complex case made more difficult 

because of the passage of time. 

The difficulties faced by the pursuer 

included some for which the 

defenders were responsible, such as 

problems with medical notes and the 

failure of the midwife employee to 

write her notes in a form which 

enabled her to be identified. That had 

caused difficulties for the pursuer as 

well as the defenders. If there had 

been substantial and unreasonable 

delay since the raising of the action, 

the post-litigation delay would have 

been judged more severely. Her 

Ladyship considered that there had 

been nothing in the delay since this 

action was raised which could be 

considered “inordinate”. 

Even if there was, in the context of 

the development of this complex case 

with the constraints of legal aid, it 

was excusable. 

Designation of party 

In AWB v JP 2010 GWD 19-371 Sheriff 

Ian Miller was required to consider 

when a party could avoid disclosing 

their present address to the other 

party. Sheriff Miller first considered 

the averments the defender founded 

on to justify non-disclosure. These 

included bare allegations of physical 

and verbal abuse and of having to act 

in self defence against violent 

conduct, a charge of assault in 2002 

that resulted in a verdict of not guilty, 

and an allegation of assault in 

February 2006. The most recent 

incident related to verbal abuse in 

December 2006. In addition she 

averred that the pursuer had been 

abusive to her mother and her new 

partner prior to that last date. The 

pursuer denied all of these averments. 

After a review of authorities Sheriff 

Miller considered that a number of 

principles applied: 

1. The general rule is that the 

present address of a party to an 

ordinary cause action must be 

disclosed. 

2. Should a party change address 

while such an action is in dependence, 

that party is under an obligation to 

inform the court. 

3. If that party does not wish to 

disclose their present address, they 

must set out why in their pleadings. 

4. The reasons to support that 

departure from the general rule must 

be stated fully. An averment that one 


party was not residing with the other 

is insufficient to justify nondisclosure. 

5. In deciding whether to allow a 

party to preserve the requested 

anonymity, the court exercises a 

discretion. 

6. The discretion is wide. It can 

extend to denying to the party who 

wishes to maintain their anonymity 

of residence the right to proceed with 

the action, at least until the issue of 

disclosure has been addressed to the 

satisfaction of the court. It could 

involve requiring disclosure in a way 

that inevitably brought the address to 

the knowledge of the other parties to 

the action. 

7. The discretion has to be 

exercised on the basis of the 

information supplied to the court at 

the hearing when the issue is being 

debated. 

8. The discretion can involve 

whether to allow the party to disclose 

the address to the court alone. 

Sheriff Miller then considered that 

the general rule applied to all actions, 

both family and other ordinary 

actions. The obligation to disclose or 

explain fully why there should be no 

disclosure rested on the party seeking 

non-disclosure. Here the averments 

were of some antiquity, predating the 

raising of the action in 2007. Sheriff 

Miller concluded that there should be 

disclosure. He then considered 

whether such disclosure should be 

restricted to the court. This would 

always depend on the facts and 

circumstances of the individual case 

in ascertaining what was in the 

interests of justice. The requirement 

to disclose attached to the action as 

such and not just to the hearing on 

which the court was currently 

engaged. If a party wished to restrict 

disclosure, reasons must be adduced 

in support of that restriction that 

satisfied the court as to its justification 

on the facts and having due regard 

to the proper interests of the 

administration of justice. This the 

defender had not done. 

Decree by default 

In Battenberg v The Firm of Dunfallandy 

House [2010] CSIH 41; 2010 GWD 19- 

370 the Inner House, in considering 

whether to allow an appeal against a 

decree by default, observed that a 

judge granting decree may well be 

unaware of the reasons for the nonappearance 

of the party in default and 

those reasons may make that nonappearance 

wholly excusable. In 

principle, therefore, the decision 

whether to recall a decree by default 

Courts should always be 

informed of address changes 

If a party wished to restrict 

disclosure, reasons must be 

adduced in support of that 

restriction that satisfied the 

court as to its justification 

should not be confined to the 

question whether, on the information 

available to it, the first instance court 

granting that decree had exercised 

its discretion reasonably but also 

information that is available to the 

appellate court. 

By contrast, in Scottish Ministers v 

Smith [2010] CSIH 44; 2010 GWD 20- 

387 the Second Division refused an 

appeal through want of insistence 

when the appellant failed to appear. 

A medical certificate was produced 

which predated the hearing. The 

certificate stated that the appellant 

was medically unfit to attend court of 

the day of the appeal. Their Lordships 

observed that whilst the certificate 

was not on soul and conscience this 

was no longer essential. 

However, the certificate failed to 

specify the appellant’s medical 

condition, how long she had suffered 

from it, how long she was expected to 

continue to suffer from it, and why it 


endered her unfit to attend. Further 

the date of the certificate was that of a 

by order hearing at which the 

appellant had appeared and had 

moved unsuccessfully to discharge the 

appeal hearing. This might of course 

be the real reason for the decision! 

Amendment 

In Lawley v Sutton 2010 GWD 14-257 

the defender lodged a minute of 

amendment introducing a 

counterclaim in terms of s 28 of the 

Family Law (Scotland) Act 2006 and 

a crave for division and sale. The 

pursuer’s crave was also in terms of 

s 28. Sheriff Berry allowed the 

amendment. It corrected the 

defender’s position. It did not 

introduce a new case. The defender’s 

intention to claim a capital sum had 

been averred at an early stage and 

thus was not time barred. OCR 19 did 

not prevent a counterclaim for 

division and sale. 

Additional proof 

In Rankin v Jack [2010] CSIH 48; 

2010 GWD 21-405, an application for 

additional proof to be led as a ground 

of appeal, the Inner House made 

certain observations. It was a matter 

of judicial discretion as to whether 

additional proof was allowed in the 

context of an appeal on the ground 

of res noviter veniens ad notitiam. In 

looking at the interests of justice and 

the need for finality in litigation, a 

party would not be allowed a second 

chance where that party had failed to 

lead evidence at proof which had 

then been available, or would have 

been had proper investigation been 

carried out. Even if evidence fell 

within that category, the court still 

had to consider whether hearing such 

evidence overrode the need for 

finality in litigation. The court would 

consider its cogency bearing in mind 

it was being heard to support a 

ground of appeal. 

Expenses 

In Albert Bartlett & Sons (Airdrie) Ltd 

v Gilchrist & Lynn Ltd [2010] CSIH 33; 

2010 GWD 21-407 the Inner House 

reaffirmed the general rule that the 


cost of litigation falls on the person 

who has caused it. Therefore, if the 

pursuer loses their case, or a material 

part of it, they must pay the relative 

expenses of the other party, since they 

have caused that other party the 

expense of vindicating their position. 

But it follows from the nature of the 

rule that the unsuccessful party’s 

liability is limited to paying the 

expenses of the party against whom 

they have directed his cause. In the 

absence of some unreasonable 

behaviour, the expenses of third 

parties are generally only recoverable 

against the party who has directed a 

case against them. 

Just as a reminder, in Phoenicia Asset 

Management SAL v Alexander [2010] 

CSOH 71; 2010 GWD 21-409 Lord 

Hodge allowed a haver to have an 

account of expenses taxed. A haver 

could be entitled to a reasonable 

fee for time spent and expense 

reasonably incurred in putting 

voluminous documents into 

electronic form in order that the 

relevant documents could be chosen 

for disclosure, if that method was no 

more expensive than other methods. 

Family actions 

In Fleming v Bradshaw, Perth Sheriff 

Court, 11 May 2010 (2010 GWD 20- 

395), the issue raised was whether a 

solicitor could be ordered to pay his 

client’s share of fees incurred by a 

curator ad litem appointed to look 

after the interests of a child who was 

the subject of the action. On a review 

of authorities, the sheriff decided that 

there was no reason why a solicitor 

acting for a party could not be 

ordered to pay that party’s share of 

the curator ad litem’s fees. Curators 

perform a very important task and it 

was essential that they should receive 

payment for their services. If a 

solicitor was to avoid such potential 

liability, they would require to advise 

the court at the time a curator was 

appointed that their client could not 

meet any such potential fees. This 

information should be available to 

the solicitor at that time. 

In Dundee City Council, Petrs, 

Dundee Sheriff Court, 18 May 2010 

(2010 GWD 18-357) Sheriff Pyle 

considered the effect of the Adoption 

and Children (Scotland) Act 2007 

(Commencement No 4, Transitional 

and Savings Provisions) Order 2009. 

He concluded that a freeing order 

granted after 28 September 2009 will 

be deemed to be a permanence order. 

Adults with incapacity 

In Matthew, Petr, Dundee Sheriff 

Court, 20 May 2010 (2010 GWD 21- 

408), Sheriff Davidson, after 

considering authorities, determined 

that in the absence of litiscontestation, 

expenses in respect of a summary 

application under the 2000 Act for the 

appointment of a guardian should be 

on an agent and client basis, and the 

interlocutor should specify this. This 

reflected the correctness of ensuring 

that someone prepared to take 

responsibility in a fiduciary capacity 

was not personally out of pocket for 

doing so. Such expenses would still 

be those “reasonably and necessarily 

incurred”, and that was a matter 

initially for the discretion of the 

Auditor of Court and thereafter for 

the sheriff if objections to the account 

were taken. 

There was possibly a need for the 

Public Guardian from time to time to 

consider whether accounts appeared 

to demonstrate charges that were 

being unreasonably and 

unnecessarily incurred, but that did 

not affect the principle applicable to 

the basis on which such accounts 

should be charged. An award of 

expenses on a party and party basis 

was foreign to an uncontested 

application for the appointment of a 

person to act in an administrative and 

representative capacity. 

Update 

Since the last article Komori v 

Tayside Health Board (May 

article) has been reported at 

2010 SLT 387, and Williamson 

v Williamson (November 2009 

article) at 2010 SLT (Sh Ct) 41. 


Professional briefing Licensing 

Amendments to the licensing provisions 

of the current bill still seem to be subject 

to arbitrary political whims 

What fresh 

hell is this? 

The news of the passage of the 

Criminal Justice and Licensing Bill 

through the committee stages at 

Holyrood is as depressing as it is 

predictable. Discussions with civil 

servants on non-contentious issues 

met with a positive response. Issues 

such as a return to the old appeal 

system, restoration of the “site only” 

provisional grant, and more prosaic 

matters such as allowing a licensee to 

have a drink in his own premises after 

closing time were all raised. Better still, 

they all found their way into the bill. 

And then found themselves 

unceremoniously dumped, for reasons 

no one has condescended to explain. 

Familiar figure returns 

What did stay in was our old friend 

vicarious responsibility. The 2005 Act 

provides that the majority of offences 

can only be committed knowingly. A 

full bench decision in 1967, Noble v 

Heatly 1967 JC 5 made it clear that 

“knowingly” must have its literal 

meaning, in other words implied or 

constructive knowledge was not 

sufficient for a conviction. The return 

of vicarious responsibility was requested 

by ACPOS, and one can readily 

understand the police point of view. 

The main thrust of this will be to 

take us back to the position under the 

1976 Act, whereby a licence holder 

is open to prosecution for certain 

breaches of the law by their staff. In 

the debate leading to the 1976 Act, 

there was even a suggestion that this 

should be imposed on a strict liability 

basis, in other words with no defence 

available to the hapless (and often 

blameless) licensee. Wiser counsel 

prevailed and most such offences had 


the possibility of a “due diligence” 

defence. In other words, if a licensee 

could prove that they did not know 

of, or connive at, the act in question, 

and exercised all due diligence to 

prevent its commission, they could 

secure an acquittal. It seems certain 

that this, too, will be reinstated. 

Testing the system 

What does this mean for the trade? 

Prior to the 2005 Act, prosecutions 

of licensees were fairly rare. The 

introduction of test purchasing saw 

these increase markedly, and in some 

parts of the country workers in licensed 

premises are pursued with a fervour 

and zeal which would have brought a 

glint to the eye of those conducting the 

Salem witch trials. Issues which once 

would have been dealt with by a stiff 

dressing down in a superintendent’s 

office are now resulting in part time 

shop assistants getting criminal records 

for the first time in their 40s. It is likely, 

therefore, that due diligence systems 

will be put under the microscope more 

than ever before. 

Everyone should be reviewing what 

they have. There are now statutory 

training records, but these will not be 

enough unless there is regular refresher 

and follow-up training (see First 

Quench Retailing v McLeod 2001 SLT 

Duty? What duty? 

As a footnote, the Editor asked me to comment on 

the so called “duty to trade”. That’s one of the easier 

licensing questions – it does not exist. However as the 

question continues to raise its head from time to time, I 

have explained my views in the separate feature on p29. 

372). CCTV and computerised tills 

can have their uses. Licensees can also 

organise their own test purchasing, 

provided they do not use under-18s. 

The big companies are now, quite 

rightly, paranoid about their systems: 

those who do not have access to these 

should take specialist advice. 

Going to the top 

If the reform stopped there, we could 

live with it; however our political 

masters have gone further. It will not 

only be the licensee who can be 

convicted. The list of potential 

accused will include any “interested 

party”. This can include the owner 

or person having management or 

control of the business. Remarkably, 

it can also include the owner of the 

building. A leisure park near my office 

is owned by Grosvenor Estates. It has 

a dozen or so licensed premises. If 

His Grace the Duke of Westminster 

(or any other property owner who 

lets property for use as licensed 

premises) wants to stay out of 

Saughton or Barlinnie Prisons, he will 

require a due diligence strategy. I’m 

not sure I currently know how to 

prepare that, but when the shock of 

this fresh hell has passed and I have 

recovered the power of speech, I’ll 

think of something. 

Tom Johnston, Young & Partners LLP, 

Dunfermline and Glasgow 


Professional briefing Environment 

Links with the past 

A new bill in the Scottish 

Parliament proposes important 

changes in relation to listed 

or potentially listed buildings 

and ancient monuments 

The Historic Environment 

(Amendment) (Scotland) Bill 2010 

was introduced in the Scottish 

Parliament on 4 May. It amends the 

Historic Buildings and Ancient 

Monuments Act 1953, the Ancient 

Monuments and Archaeological Areas 

Act 1979 and the Planning (Listed 

Buildings and Conservation Areas) 

(Scotland) Act 1997. It addresses the 

Scottish Government’s aims of 

streamlining and clarifying the rules 

for managing and protecting 

Scotland’s historic environment. 

The bill is of relevance for any 

solicitors advising in relation to a 

property development which affects 

a scheduled ancient monument, a 

listed building or building which 

may be subject to listing. 

Certificate that building not 

intended to be listed 

Of particular significance is s 18, which 

provides the right of “any person” to 

apply to Scottish ministers for a 

certificate that a particular building 

will not be listed for a period of five 

years. Following issue of the certificate, 

planning authorities may not serve a 

building preservation notice in respect 

of the building during this time. 

Any building, if of special 

architectural or historic interest, may be 

listed at any time by ministers. There is 

no right of appeal. Other factors such 

as condition, implications for future 

use or financial issues are not relevant 

to the decision, which is a ministerial 

one taken on professional advice from 

Historic Scotland. Whilst the older a 

building the more likely it is to present 

a special interest, buildings erected in 

the last 40 years have been listed. 

The consequences of listing are 

likely to be delay, amendment and 

potential abandonment of property 

development, as not only is the 

building strongly protected against 

any works which may affect its 


Any building, 

if of special 

architectural 

or historic 

interest, may 

be listed at 

any time by 

ministers. 

There is no 

right of appeal 

character, but its setting is also 

protected. A measure of policy 

protection against “spot listing” is 

afforded in para 2.35 of Scottish 

Historic Environment Policy (July 

2009) (“SHEP”), which states that a 

building will not normally be listed 

once a planning application has been 

submitted, granted or planning 

permission is being implemented. 

The policy memorandum 

accompanying the bill states that s 18 

will provide certainty for owners 

and developers. This is the most 

controversial element of the bill and 

stakeholder responses raised issues 

concerning adequacy of resources to 

handle applications, clarity on the 

basis of assessment, relationship with 

building preservation notices, and 

whether the five-year period is too long. 

A similar provision exists in 

England under s 6 of the Planning 

(Listed Buildings and Conservation 

Areas) Act 1990 and such 

applications are generally known as 

“certificates of immunity”. In contrast 

to the Scottish bill which envisages an 

application at any time, under s 6 the 

application can only be made after 

planning permission has been 

applied for or has been granted. The 

decision to award immunity follows 

an assessment by English Heritage 

and if immunity is refused, the 

building will normally be listed. 

This provision has not been widely 

used, probably because applications 

will inevitably create a delay and if 

unsuccessful will result in a listing 

that might not otherwise have 

occurred. Under the proposed 

Scottish amendments, prior to 

making an application, a professional 

judgment will need to be made on 

whether the building in question 

meets the criteria for listing under 

SHEP. The inclusion of a standard 

requirement to make an application 

in the context of property transactions 

appears to be unlikely, but an 

application should be considered 

where a building is unlisted but 

appears to meet the criteria for listing. 

The bill provides no right of 

hearing or appeal in relation to an 

application, nor a time limit within 

which a certificate is to be issued. 

Scheduled ancient 

monuments (“SAMs”) 

The bill also restricts the “defence of 

ignorance” in the 1979 Act, increases 

the level of fine to £50,000 on 

conviction for undertaking 

unauthorised works, and allows any 

financial gain to be taken into account 

in sentencing. Ministers are also 

empowered to exercise rights of entry, 

serve enforcement notices, stop notices 

and temporary stop notices, and raise 

actions of interdict in respect of 

unauthorised works to SAMs. 

Listed buildings 

The same increased fines apply on 

conviction for undertaking 

unauthorised works on listed buildings, 

together with the application of fixed 

penalty notices as an alternative where 

that is appropriate. Planning authorities 

can decline to determine applications 

for consent where a similar application 

has been made within the previous two 

years. The right of an appellant to 

require a hearing or an inquiry 

following refusal of consent is to be 

removed, in line with similar changes 

in relation to planning applications. 

There are also new provisions for stop 

notices and temporary stop notices to 

halt unauthorised works. 

Where ministers or a planning 

authority undertake urgent works to a 

listed building, they may recover the 

costs against not only the original 

owner, but also (provided certain 

criteria are met) the new owner, who 

then has a right of recovery against the 

original owner. These costs may also be 

secured by a charge over the property. 

Alastair McKie, Head of Planning & 

Environment, Anderson Strathern LLP 


Professional briefing Insolvency 

A recent English case, Singla v Hedman [2010] EWHC 902(Ch), highlights 

wrongful trading provisions – and the colourful world of the film industry 

Stranger than fiction 

Section 214 of the Insolvency Act 

1986 provides that a director of an 

insolvent company who knew or 

ought to have known that there was 

no reasonable prospect of avoiding 

liquidation may be found liable to 

make a contribution to the assets. 

Wrongful trading cases are rare. This 

one makes no new law, but may be 

instructive and is certainly colourful. 

I could not make it up. 

The dramatis personae 

Hedman: first respondent, sole 

director and shareholder of NMD. 

NMD: NMD (UK) Ltd, a special 

purpose vehicle with £2 issued share 

capital formed as a film production 

company to make and exploit a film 

titled Nine Miles Down. 

OM: Oliver Martinez, intended but 

unconfirmed lead actor. (This is the 

name in the report, but it may have 

been Olivier Martinez, French actor 

and ex of Kylie Minogue.) 

GTH: Gone to Hell Ltd, second 

respondent. Produced a version of the 

film pursuant to a second one-picture 

licence (OPL) granted to it after the 

demise of NMD. 

Stonewood: third respondent, 

Dutch company and licensor of the 

right to produce the film. Not 

represented at trial. 

Waller: beneficial owner of 

Stonewood and proposed director of 

the NMD film. 

Peter Hoffman: Los Angeles 

entertainment lawyer. 

Kate Hoffman: Peter Hoffman’s 

daughter, owner and director of GTH 

and also representative of Seven Arts. 

Seven Arts: US film financing 

company owned or controlled by 

Peter Hoffman. 

OSB: One Step Beyond, the 

petitioner and only creditor of NMD. 

The plot 

NMD entered into a production 

services agreement (PSA) with OSB 

when it had no cash or agreed 

financing, and no binding contract 

with OM. Other than any claim 

arising out of the OPL it held, it 

had no assets. Hedman had left 


financing to be arranged by Peter 

Hoffman and Seven Arts, but none 

was forthcoming. He left negotiation 

of terms with OM to Waller. The PSA 

committed NMD to making 

immediate and future payments for 

the film production; OSB was to 

provide filming services in South 

Africa and Namibia. Production 

ceased on day two, in the absence of 

the leading actor and any funding. 

OSB pursued NMD by arbitration 

in South Africa, obtained an award 

which they registered in England as a 

judgment and eventually petitioned 

for NMD’s winding up. The 

liquidator brought an action for 

wrongful trading against Hedman 

and sought ancillary declarations 

against the other respondents. 

The dénouement 

The wrongful trading issue was 

relatively easily disposed of. Mr Justice 

Peter Smith noted that NMD never had 

any more capital than the nominal £2; 

had no cash or enforceable agreements 

for the provision of finance; and signed 

the PSA when it had no finance or other 

resources to honour its obligations, and 

no contract with OM. He continued: 

“None of this might have been 

important if NMD had had the luxury 

of time and money. It had neither and 

OSB has lost as a result.” 

Hedman “demonstrated his 

attitude to his responsibilities 

as director” in his first witness 

“I frankly 

disbelieve 

Mr Waller on 

this and all the 

key points of 

his evidence… 

I had the 

same view of 

Mr Hedman. 

More seriously, 

Mr Hedman 

told a whole 

series of lies” 

statement. Acknowledging that NMD 

had no assets when filming began, “he 

stated it was his experience that it 

would be very unusual for a film 

company to begin its activities with 

sufficient funds of its own to make the 

film… The statement demonstrates in 

my view Mr Hedman’s casual approach 

to his director’s duties to look to the 

best interests of NMD and if the 

company does not have assets to pay 

creditors the duty that he owes to those 

creditors to minimise their losses.” 

Space precludes discussion of the 

ancillary claims. Suffice to say that 

the judgment contains the following 

passages: “I frankly disbelieve Mr 

Waller on this and all the key points 

of his evidence. I find him evasive and 

unconvincing. I had the same view of 

Mr Hedman. More seriously, Mr 

Hedman told a whole series of lies.” 

And later: “[Hedman’s] statement and 

the witness statement… suggests a 

remarkably low standard of corporate 

responsibility in the film industry as 

being normal. There is, however, in 

my view no special low standard for 

people in the film industry.” 

Hoffman appears to have been a 

colourful character as well. The 

judgment calls his competence into 

question: “The OPL was apparently 

created by Peter Hoffman. It is a 

poorly drafted document”; and 

later: “…the quit claim was a 

forgery. Mr Hoffman will have 

known that. It is disappointing 

to see an advocate of the 

California State Bar being willing 

to tell lies”. The judge also held 

that Hedman and Waller were 

telling lies, and Kate Hoffman had 

fabricated documentation after 

NMD’s liquidation with a view to 

providing GTH with clear title to 

produce the film licensed to NMD. 

Although it appears Martinez had 

declined to be involved because he 

was not offered sufficient money, it is 

tempting to hope that his refusal 

showed some foresight about the 

possible consequences. 

Alistair Burrow, Head of Recovery, 

Tods Murray LLP 


An issue of 

professional 

practice arises 

because of the 

policy of the 

Child Maintenance 

and Enforcement 

Commission (CMEC) – 

formerly the CSA – when 

dealing with solicitors. 

If you wish CMEC to 

speak to you about your client’s case, 

you will be expected to lodge your 

client’s mandate, ideally showing 

the client’s full name, address and 

postcode together with the client’s 

date of birth and national insurance 

number. In due course – sometimes it 

can take well over a week – CMEC 

will register that mandate, after which 

time CMEC staff will be prepared to 

speak to you about your client. 

If you telephone them about your 

client, they will demand that you 

should give them your client’s full 

name, address including postcode, 

date of birth and national insurance 

number together with the name and 

date of birth of one of the children in 

the case. That may be fair enough – as 

far as they are concerned you could 

be anybody at all and you should 

have to prove that you have at least 

that information about your client. 

They say that they are forced by the 

Data Protection Act to ask that 

information before speaking to 

anybody on the telephone. 

Inviting breach of duty 

What is not fair enough is that when 


Professional briefing Family 

Sauce for 

the gander? 

Some inconsistencies in CMEC 

practice could lead to inappropriate 

disclosure of information 

CMEC telephone you to discuss your 

client’s case they insist that you give 

them the same information before 

discussing your client’s business. This 

is, of course, a nonsense. When 

they telephone you they, as far as 

you are concerned, are a 

disembodied voice who could 

be anybody. When challenged on this 

point CMEC tend to say “But we are 

CMEC”, as if the mere averment were 

a magic spell which made the Data 

Protection Act and our professional 

duty of confidentiality disappear. 

The more sinister aspect of this is 

that an ill intentioned third party 

could telephone your office claiming 

to be from CMEC and ask for your 

client’s personal details. If you were to 

give them these details, that individual 

could then telephone CMEC and gain 

all sorts of information about your 

client’s business. 

This matter has been referred to the 

Professional Practice Committee who 

have ruled that any solicitor who does 

reveal that information to somebody 

who telephones without vouching 

who they are will be in breach of the 

professional responsibility of 

confidentiality. 

I have referred that matter to CMEC 

at a reasonably high level and although 

the officials accept that the present 

policy is illogical, the policy has not yet 

been changed. Watch this space. 

In the meantime, you should not 

give your client’s details such as 

national insurance number and date 

of birth to anyone claiming to be 

from CMEC. 

Dangerous heresy 

Finally, a novelty meme has infected 

some areas of CMEC practice. I have 

been told that CMEC are not 

allowed to speak to me unless they 

have my own national insurance 

number, and that their computer 

system is unable to accept my client’s 

mandate in my favour unless it 

includes that number. 

Even by the standards of CMEC 

this is remarkable. If you ever come 

across this sort of thing, please let 

me know, and also contact the 

complaints department of CMEC in 

Falkirk. There is no requirement for 

any solicitor to give his or her own 

national insurance number – there 

never was – but once an idea like 

that gets into an organisation like 

CMEC the infection can be viral 

rather than bacterial: very difficult 

to remove completely. 

Generally, CMEC has been 

making real efforts to improve its 

performance. The removal of the 

requirement for benefit claimants to 

apply for child support and, more 

importantly, the new 100% disregard 

which has applied since April this 

year are only the most obvious 

improvements. Anecdotally, the 

attitude of CMEC staff towards 

solicitors and their clients has 

become less adversarial and more 

professional. We can only hope that 

that improvement will continue – 

there’s still a fair way to go. 

John Fotheringham is a consultant to 

Fyfe Ireland LLP, Edinburgh and Glasgow. 


Professional briefing Charities 

A private bill now passed by the Scottish Parliament has shown 

up a need to review the law regarding charity reorganisations 

Acts of kindness 

The enactment of the Ure Elder Fund 

Transfer and Dissolution Act 2010 

offers an insight into the promotion 

of private legislation, as well as 

reorganisation of charities under 

the Charities and Trustee Investment 

(Scotland) Act 2005. 

Private legislation 

The Ure Elder Act is a relatively rare 

example of a “private” entity 

promoting legislation. Scott Wortley’s 

24 December 2009 posting on Scots 

Law News offers a succinct overview 

of Scottish private bills following 

devolution. Such measures seek to 

do something in excess of the general 

law as it stands; in the case of the Ure 

Elder Act, to effect a statutory transfer 

of assets and liabilities and repeal 

previous legislation. 

It is important for promoters 

to establish the reasons for such 

objectives and for resorting to 

legislation. Effective pre-introduction 

consultation is at the heart of this. 

Perhaps the central document to the 

procedure is the promoter’s 

memorandum. This details the bill’s 

genesis, its objectives and how these 

will actually be implemented, seeking 

to explore more fully and accessibly 

the statutory language deployed. 

Its importance is underlined by the 

need for the promoter to explain to 

the parliamentary bill committee the 

bill’s objectives, coupled to the 

reasons why the promoter embarked 

on legislation. Once the committee 

has heard evidence it will report to the 

Parliament. The report will be 

considered at a preliminary stage 

debate and the bill will then undergo 

consideration stage (if required) and 

final stage before being passed. 

It is likely that the preliminary 

stage report will be the most detailed 

examination of the bill. It also offers 

the committee the opportunity to 

make general observations and 

recommendations. The Ure Elder Bill 

committee did so in the context of 

the methods of reorganising charities. 

Charity reorganisation 

The Ure Elder Act is the first of its 


kind since OSCR assumed its full 

regulatory role. It is guaranteed not to 

be the last, following the introduction 

of the William Simpson’s Home 

(Transfer of Property etc) (Scotland) 

Bill. Due to the future likelihood of 

charities created by statute seeking 

to promote private legislation, the 

preliminary stage report appropriately 

raised the issue of methods available 

to charities to reorganise. Its 

conclusion that statutory charities 

should not always need to promote 

private legislation leads one to 

consider the reorganisation provisions 

in chapter 5 of the 2005 Act. 

Chapter 5 provides a system for 

charities to alter their constitutions, 

where these do not provide the 

trustees with a route to make the 

desired amendments. Section 42(5) 

states that the provisions do not 

apply to charities constituted by an 

“enactment”. The accompanying 

explanatory notes underlined the 

apparent intention to maintain the 

position of the legislature in relation 

to certain charities. 

Cross and Ford’s annotations to 

the Act neatly describe that s 42(5) 

“avoids usurpation by either OSCR or 

the Court of Session of the role of the 

Privy Council... or of the legislature”. 

However, s 42(5) is subject to an 

exception that the “governing body”, 

i.e. the trustees, of an “endowment” 

under the Education (Scotland) Act 

1980 may use the reorganisation 

provisions. The definition of 

“endowment” (“any property, heritable 

or moveable, dedicated to charitable 

purposes”) leads to an unhappy 

relationship between the 1980 and 

2005 Acts, one that could significantly 

widen the scope for charities to 

reorganise in a manner not envisaged 

under the 2005 Act (and other 

regulatory requirements that may apply 

to specific charities). A wide definition 

could lead to the place of the legislature 

being set aside for all charities governed 

by statute. This seems far from what the 

2005 Act intended. 

The reorganisation provisions are 

largely based on ss 9 and 10 of the 

Law Reform (Miscellaneous 

To provide 

clarity to all 

concerned, the 

reorganisation 

provisions 

should be fully 

reviewed. 

The rules need 

to provide a 

flexible OSCRled 

process 

for the vast 

majority of 

charities 

Memorial to a pioneer 

Provisions) (Scotland) Act 1990. 

These sections proved not entirely 

satisfactory in practice (see, e.g. Mining 

Institute of Scotland Benevolent Fund 

Trustees, Petitioners 1994 SLT 785), and 

the current provisions are an 

improvement, due in many ways to 

the manner in which OSCR’s team 

deal with chapter 5 applications. 

However, they could themselves be 

improved. The Public Services Reform 

(Scotland) Act 2010 makes some 

welcome amendments, but these 

address very specific problems rather 

than provide a systematic and 

coherent updating. To provide clarity 

to all concerned, the reorganisation 

provisions should be fully reviewed. 

The rules need to provide a flexible 

OSCR-led process for the vast majority 

of charities, while respecting the Privy 

Council and Parliament’s roles. 

Replacement of the reorganisation 

parts of the 1980, 1990 and 2005 Acts 

with a coherent, single set of rules 

within the 2005 Act would appear the 

most appropriate way. 

Alan Eccles, Associate, Maclay Murray 

& Spens LLP 

Alan Eccles writes: “The Ure Elder Act provides an 

opportunity to acknowledge the endeavours of Isabella 

Elder, whose will created the Ure Elder Fund and stands 

testament to a lifetime of ground-breaking programmes, 

particularly in women’s education. For those interested, I 

recommend Dr Joan McAlpine’s The Lady of Claremont 

House: Isabella Elder – Pioneer and Philanthropist (1998).” 


Professional briefing Discipline Tribunal 

Scottish Solicitors 

Discipline Tribunal 

This month’s cases concern procedure in an appeal against an IPS finding, 

and a striking off for systematic non-recording and falsification of deeds 

Section 42A appeal – Rory Cradock 

An appeal was made under s 42A of 

the Solicitors (Scotland) Act 1980 by 

Rory Cradock, solicitor, Aberdeen 

(“the appellant”) against a finding of 

inadequate professional service by 

the Council of the Law Society of 

Scotland and a determination and 

direction that the appellant’s former 

firm should not be entitled to charge 

fees in relation to a transaction and 

that any such fees should be 

refunded, and that the appellant’s 

former firm should pay the sum of 

£1,000 by way of compensation to 

the client in addition to the costs 

incurred by the client in the 

rectification of the defect in the 

conveyancing complained of. 

The Tribunal reserved judgment in 

relation to the preliminary plea 

of time bar in respect of the second 

head of complaint until the 

conclusion of the appeal hearing 

and allowed the parties to lead oral 

evidence at such hearing as they 

think fit. The Tribunal resolved that a 

hearing be allowed in respect of the 

appeal on a date to be fixed, and with 

regard to the issue of compelling 

witnesses, directed the parties to the 

provisions of para 12 of sched 4 to 

the Solicitors (Scotland) Act 1980. 

The Tribunal noted that it was 

normal procedure for s 42A appeals 

to be conducted by debate. The 

Tribunal was satisfied that having 

regard to the terms of para 11 of sched 

4 to the 1980 Act, the parties in the 

case, particularly the appellant, might 

insist on requiring evidence to be led 

as set out therein. Accordingly, the 

Tribunal allowed the parties to lead 

oral evidence at the substantive 

hearing as they think fit. 

In connection with the issue of 

compelling witnesses to attend, 

provisions are contained in para 12 

of the schedule. The Tribunal 

accordingly deemed it inappropriate 


The respondent 

had deceived 

clients, fellow 

agents and 

lenders in an 

organised way. 

This sort of 

action was 

bound to bring 

the profession 

into disrepute 

to consider at this time the issue of 

ordering the Society to reveal the 

identity of the reporter and the 

convener of the client relations 

committee who considered the 

matter. The Tribunal considered that 

this would be a matter to be decided 

by the sheriff court if an application 

was made by the appellant in terms of 

para 11. The Tribunal reserved 

judgment in connection with the 

preliminary issue of time bar. 

Russell Craig Livingstone Taylor 

A complaint was made by the 

Council of the Law Society of 

Scotland against Russell Craig 

Livingstone Taylor, solicitor, 

Aberdeen (“the respondent”). The 

Tribunal found the respondent guilty 

of professional misconduct in respect 

of his breach of rules 4(1)(a), 8(4) 

and 9 of the Solicitors (Scotland) 

Accounts etc Rules 2001, his failure to 

stamp and record dispositions for his 

clients within a reasonable time, his 

failure to record standard securities 

for his clients within a reasonable 

time, his failure to be wholly honest 

with the Society, his falsification of 

title deeds and reports on titles to 

lenders to his clients, his falsification 

of the purchase price in 

dispositions, his failure to 

disclose to lenders to his 

clients that certain 

transactions were 

onward sales, that 

certain transactions 

were between 

connected persons, and 

that in certain transactions 

his clients had not paid the 

full purchase price, his failure to act 

honestly in his dealings with fellow 

agents, his failure to ensure the 

accuracy and integrity of his firm’s 

accounting system, his failure to 

ensure that his firm did not act for 

both parties in a conveyancing 

fyi 

For findings on cases 

decided since 1995 

visit the Tribunal’s 

website at 

www.ssdt.org.uk 

transaction, and his failure to be 

wholly candid with fellow agents. 

The Tribunal ordered that the name 

of the respondent be struck off the 

Roll of Solicitors in Scotland. 

The respondent did not lodge 

answers and did not appear at the 

Tribunal. The Tribunal heard 

evidence from four witnesses and was 

satisfied that the majority of the facts 

in the complaint were proved beyond 

reasonable doubt and that the 

respondent was guilty of professional 

misconduct in respect of the majority 

of the averments in the complaint. 

The Tribunal was gravely concerned 

by the respondent’s conduct in this 

case. He had failed to run a 

professional practice and his actions 

had persisted over a period of time. 

The respondent had deceived clients, 

fellow agents and lenders in an 

organised way. This sort of action was 

bound to bring the profession into 

disrepute. The respondent had not 

given any explanation for his actions, 

which were regrettably disgraceful 

and dishonourable. They amounted 

to a systematic scheme of falsification 

and non-recording of deeds, which 

taken together with his inaccurate 

accounting, which concealed the true 

nature of the transactions, made 

this one of the more serious 

cases that the Tribunal 

had had to deal with in 

recent years. 

The Tribunal also noted 

a previous finding of 

professional misconduct 

against the respondent 

when he was suspended for 

a period of six years. The 

Tribunal found that the respondent 

was not a suitable person to remain 

on the Roll of Solicitors in Scotland. 

[Publicity was deferred in this case due 

to ongoing criminal proceedings. On 13 

May 2010, the Tribunal resolved to now 

give publicity to this case.] 


Professional briefing Web review 

Other people’s money 

Websites of trust management companies 

cover a range of sophistication 

This month, the web review takes a 

look at the sites of trust management 

companies and asks, which one would 

007 work for? 

Professional Controller 

& Trustee Services 

www.protrustee.com 

This company is based in Northern 

Ireland, but appears to operate 

elsewhere in the United Kingdom as 

well. The website is fairly basic, and I 

suppose you would categorise it as a 

“brochure” site except that it doesn’t 

really look like a brochure – or not 

one that you’d feel like you wanted 

to pick up, at any rate. 

The site’s main page has the logo 

and contact details, together with four 

main links to the four pages that make 

up the rest of the site. The “contact us” 

page gives no information that is not 

already provided on the home page, 

rendering it rather pointless; by 

contrast, the “publications” page is 

not actually a list of publications at all 

but rather a lengthy exposition (in 

small font size) of the law in this area. 

A fairly poor effort overall. 

Universal Trust Corporation 

www.universaltrust.co.uk 

The Universal Trust Corporation 

(didn’t James Bond used to work for 

them?*) has a site which certainly 

looks the part and comes across as 

altogether more professional. It has, 

as many sites do nowadays, stock 

Who writes 

this column? 

The website review 

column is written 

by Iain A Nisbet of 

Govan Law Centre 

e: iain@absolvitor.com 

All of these links 

and hundreds more 

can be found at 

www.absolvitor.com 

Absolvitor is also 

now on Facebook: 

http://bit.ly/absolvitor 

* No, he didn’t. 

However, Universal 

Exports is used as a 

cover name for the 

British Secret Service 

in many of the James 

Bond films. 

photo images of competent and caring 

professionals going about the business 

of helping you – the consumer – with 

whatever it is they do. 

And what they do in this case 

(among other things) is to run and 

administer trusts. The explanation of 

the different types of trusts they deal 

with and why you might want one is 

very clear, and is set out in a way 

which doesn’t make your eyes hurt. 

However, the navigation round the 

site left me a little confused. There are 

links to other content within the site: 

along the top of each page, down the 

left hand side, at the bottom left hand 

corner, down the right hand margin, 

and at the foot of the text in the page 

you’re reading. Oh, and sometimes 

also within the text you’re reading. 

I’m all for accessible navigation, 

but I found it a little over the top. 

Plus, there was no clear structure or 

hierarchy into which these pages and 

links fitted. Some users might be 

able to deal with that but I found 

it most disconcerting. 

Capita Fiduciary Group 

www.capitafiduciary.co.uk 

Another very professional looking 

site, with – thank goodness – a very 

firm and clear structure to follow. This 

firm seems to deal with three things: 

corporate trusts, personal trusts and 

pension trustees. And it gives nice, 

brief explanations of all three areas 

and some of the subdivisions. 

In the section dealing with probate 

services (for it is an English company), it 

has a nice little form to fill in, together 

with a promise to return to you by 

phone or email with a quotation for 

their fee. Very neat (and quite simple) 

interactivity, which was nonetheless 

absent from all the other sites. Well done. 

Mencap Trust Company 

www.mencap.org.uk/page.asp?id=10616 

This company, in fact, merits only 

one page within the much larger 

Mencap website. As you may already 

have guessed, the company manages 

special discretionary trusts set up for 

people with a learning disability. A 

brief description of their services 

follows, together with PDF booklets 

to download, including one which 

details the relevant fees. I would have 

thought that contact details should 

be provided without having to 

download a leaflet (after all PDF isn’t 

quite ubiquitous, yet) but otherwise 

the page does a reasonable job. 

Cairn Trust Management 

www.cairntrusts.co.uk 

Set up very recently by (among 

others) a former colleague of mine, 

Nicola Smith, Cairn Trust has the 

most modern look of all of the 

websites reviewed this month. With 

good use of illustrative photographs 

and simple yet clear and helpful 

explanations, the site is a very 

effective brochure for this new 

company, which is based in Glasgow. 

The site also differentiates between 

information targeted at individuals 

who may be interested in setting up a 

trust, and solicitors or others whose 

clients may be – with a separate 

“Professionals” section. 

The site has a good navigational 

structure, which manages the 

numerous internal links well, and it 

does spell out very clearly what the fee 

structure is. The only disappointment 

is that there is no interactive gizmo to 

calculate the likely total for you. 


Professional briefing Book review 

Adult Protection and 

the Law in Scotland 

Hilary Patrick 

and Nicola Smith 

PUBLISHER: BLOOMSBURY PROFESSIONAL 

ISBN: 9781847664877 

PRICE: £38 

This is a useful book for all 

professionals involved with adults at 

risk or in need of protection. The 

book deals clearly with the Adults 

with Incapacity (Scotland) Act 2000, 

recently amended by the Adult 

Support and Protection (Scotland) Act 

2007. In addition, the Mental Health 

(Care and Treatment) (Scotland) Act 

2003 is dealt with in full. 

These were important pieces of 

legislation, but their complexities can 

unnerve the lawyer who deals with 

this field occasionally. The book is a 

helpful guide for lawyers, with 

appropriate footnotes to identify the 

relevant statute, case law or text. 

Other professionals such as doctors, 

social workers and mental health 

officers will find the text useful given 

the increase in multi-disciplinary 

working and information sharing. It 

is of a handy size to read in full but 

also a useful source of reference. If the 

answer to the reader’s question is not 

within the text, reference will be 

made to more detailed sources. 

The principles of the three main 

statutes are clearly explained and 

there is a useful chapter on the key 

organisations and individuals who may 

become involved when an adult is at 

risk. The roles of the local authority, the 

Care Commission, the Public Guardian 

and the Mental Welfare Commission 

are fully explained, as are those of the 

police and prosecution service where 


criminal proceedings may be involved. 

In some such cases the fiscal may decide 

to divert the accused away from court 

proceedings and, in certain situations, 

to the civil procedure set out in the 

2003 Act. In other cases, the civil 

procedure may be judged more suitable 

after an assessment under the Criminal 

Procedure (Scotland) Act 1995. 

The five key principles of the 2000 

Act are highlighted, namely that 

interventions will benefit the adult, the 

least restrictive option should be 

deployed, the views of the adult 

should be considered, respect should 

be given to others affected, and 

arrangements should encourage the 

use and development of the adult’s 

skills. The 2007 Act has built on these 

principles, emphasising the need to 

avoid discrimination and respect the 

adult’s background and characteristics. 

There is a useful chapter on harm and 

abuse that may be encountered in adult 

protection cases. Definitions are given 

highlighting the different contexts and 

legislation that may be in point. 

The considerations involved in 

supporting an adult in need of 

protection are fully examined, and 

various initiatives which may be 

deployed using statutory and 

informal powers are described. In a 

similar vein, the various measures 

open to the court both criminally 

and civilly to afford protection to 

vulnerable adults are explained, and 

these chapters are likely to be of great 

practical benefit to the practitioner 

who may be faced with a situation 

that is not straightforward or occurs 

infrequently in one’s own practice. 

The 2007 Act placed a general duty 

on the local authority and other 

specific bodies to co-operate with one 

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, 


another. The authors cover this area and 

highlight the duties on public bodies 

and the Scottish ministers in this context 

under the Human Rights Act 1998. 

A general chapter discusses court 

powers and procedures. In relation 

to applications for intervention or 

guardianship for adults with incapacity 

it might have been helpful to have 

mentioned the Sheriff Principal’s 

Practice Note No 1 of 2006, para 6 in 

force in Glasgow and Strathkelvin, 

which lists the important matters which 

require to be covered. The authors do, 

however, provide a helpful checklist of 

the best way to communicate with 

witnesses who have special needs. The 

use of the “appropriate adults” scheme 

is also covered. This is helpful as the 

scheme, which rests on Scottish 

Government guidance, is not as well 

known as it might be. 

An inevitable consequence of care 

in the community is that adults with 

special needs may come into contact 

with the police and other authorities, 

as a suspect or accused or witness. 

The authors explain the different 

considerations that require to be 

borne in mind in these situations. 

While a work of this type is 

understandably light on history, 

background and development of the 

law, the authors conclude by looking at 

future developments. Although the law 

is stated as at 31 August 2009, reference 

is made to the Offences (Aggravation by 

Prejudice) (Scotland) Act 2009, which 

came into force on 24 March 2010. 

The authors are to be commended 

for drawing on their extensive 

experience to distil the essentials into 

a concise, readable book. 

(Sheriff) Frank R Crowe, Edinburgh 


In-house Public Services Ombudsman 

Service driver 

Based on a talk to the In-house Lawyers Group on 4 May, the Scottish Public 

Services Ombudsman, Jim Martin, explains his office’s role and how its 

investigations can result in improved public services 

The Scottish Public Services 

Ombudsman (SPSO) fills an 

important niche in the administrative 

justice framework in Scotland. It 

offers a free, independent and 

impartial complaints service to 

members of the public who claim 

hardship or injustice as a result of 

maladministration or service failure 

on the part of a listed authority that 

comes within the remit of the SPSO. 

That somewhat formal language 

translates into an organisation that 

considers complaints from ordinary 

citizens about all manner of public 

services, from the implementation of 

free personal care policy to 

neighbour disputes to school 

closures to clinical 

treatment in an NHS 

hospital. Last year, the 

fyi 

There is a bar on 

complaints brought 

more than 12 months 

after the complainant 

became aware of the 

issues in question 


organisation determined a little more 

than 3,300 complaints, and dealt with 

just over 900 enquiries. 

Background and remit 

The SPSO was set up in 2002, after 

an extensive Scottish Executive 

consultation process that concluded 

that the most appropriate 

ombudsman service for postdevolution 

Scotland was a “one-stop 

shop”. The SPSO Act 2002 merged the 

offices of the former public services 

ombudsmen in Scotland: the Health 

Service Commissioner for Scotland, 

the Scottish Parliamentary 

Commissioner for Administration, the 

Commissioner for Local 

Administration in Scotland and the 

Housing Association Ombudsman 

for Scotland. Its remit was expanded 

to include new areas 

of jurisdiction (Mental Welfare 

Commission, the Enterprise 

Network, and Further and 

Higher Education). 

The SPSO can consider complaints 

about councils, the NHS, housing 

associations, Scottish public bodies, 

enterprise companies, cross-border 

authorities, universities and colleges, 

the Scottish Parliamentary 

Corporate Body, 

and the Scottish 

Government and 

its agencies and 

non-departmental 

public bodies. 

Its remit is set to expand 

further following provisions of 

the Public Services Reform 

(Scotland) Act 2010 and the 

Scottish Parliamentary 

Commissions and 

Commissioners etc Bill, which 

passed stage 3 on 9 June. These 

pieces of legislation take forward 

recommendations made in the 

report from the “Fit for Purpose 


Complaints System Action Group” 

(the Sinclair Report), which followed 

publication of the Crerar Review. 

The Sinclair Report recommended 

that the functions of the Scottish 

Prisons Complaints Commissioner 

(SPCC) should be transferred to the 

SPSO. The Scottish Government 

accepted this recommendation and the 

SPCC etc Bill sets out a target transfer 

date of 1 October 2010. The Sinclair 

Report also recommended that the 

complaints function of Waterwatch 

should be transferred to SPSO, with 

other aspects of the organisation 

being transferred to Consumer Focus 

Scotland. At stage 3 of the Public 

Services Reform (PSR) Bill an 

amendment was made that delays the 

commencement order for the transfer 

to 12 months after Royal Assent. The 

likely transfer date is 1 July 2011. 

There is a wide range of issues that 

the SPSO cannot consider. It cannot 

look at properly made decisions, for 

example by a council (even if the 

complainant disagrees with that 

decision). It cannot look at 

personnel/superannuation issues, 

or most commercial or contractual 

matters, or complaints about UK 

departments or agencies. It cannot take 

complaints that have an alternative 

right of appeal (such as employment 

tribunal, arbitration or mediation), or 

complaints that have been to court. 

There is also a bar on the SPSO 

looking at complaints brought more 

than 12 months after the complainant 

becoming aware of the issues that gave 

rise to the grievance. 

The Complaints 

Standards Authority 

A further recommendation in the 

Sinclair Report was that “a set of 

principles… founded on consumer 

focus and simplification” be 

established. The principles “should 

form the basis of all public service 

complaints handling processes, 

which will be developed in 

partnership between the SPSO 

and service providers”. 

The PSR Act included a provision 

to enact these proposals, and, 

accordingly, the SPSO has developed a 

statement of principles. These were 

published, along with guidance for 

model complaints handling 

procedures, on 16 June. 

The principles and guidance are 

being consulted on over the summer 

(see the SPSO’s website for public 

sector complaint handlers, 

www.valuingcomplaints.org.uk), and 

the principles will be submitted to the 

Parliament for approval in autumn 


Jim Martin 

Jim Martin has been 

the Scottish Public 

Services Ombudsman 

since May 2009 

2010. The next stage will be for the 

SPSO to establish the Complaints 

Standards Authority (CSA) later 

this year. The CSA will lead the 

phased implementation of model 

complaints-handling procedures 

in the public sector. 

Investigation and redress 

A complaint that is “fit for SPSO”, i.e. 

which is about an organisation and a 

matter that the organisation can 

consider, is usually handled by the 

SPSO’s early resolution team. The 

majority of complaints that come to 

the SPSO are handled by this part of 

the service. Other complaints, often 

those that are more complex and all 

that the Ombudsman believes should 

be put into the public domain, are 

dealt with by the investigations team. 

The final outcome of a complaint is 

a decision letter, or an investigation 

report that is laid before the Scottish 

Parliament and becomes a public 

document. The individual who made 

the complaint is not identified in the 

report, nor, as far as possible, is any 

other individual. The organisation that 

the complaint is about is named. 

Where maladministration or service 

failure is found (which is the case in 

over two-thirds of those cases that 

culminate in a published report), the 

SPSO often makes recommendations 

for redress. 

These remedies may have two 

aspects. There are recommendations 

designed to put things right for the 

complainant, which may include an 

apology or explanation, action to 

mitigate any injustice, reimbursement 

of actual loss or costs and, possibly, 

modest payment for time and trouble. 

There are also 

recommendations 

to stop the same thing 

happening again. These 

may include changes to 

procedures or policies, 

staff guidance or 

training, and asking the 

body to circulate the 

learning 

The SPSO expects the 

outcomes of investigations 

to be used to drive 

improvement in the 

delivery of public services 

from the complaint. The SPSO sets 

deadlines by which the organisation 

must comply with recommendations 

and follows up to ensure that it 

implements the actions to which 

it has agreed. 

Learning drives improvement 

As well as ensuring individual redress, 

the SPSO expects the outcomes of 

investigations into complaints to be 

used to drive improvement in the 

delivery of public services. To this end, 

the Ombudsman widely disseminates 

the conclusions of investigation reports. 

The reports are posted on the 

SPSO’s website and a monthly 

newsletter summarising the reports is 

emailed to more than 1,300 interested 

parties, including bodies under the 

SPSO’s jurisdiction, MSPs and 

ministers, advocacy groups, voluntary 

organisations and the press. The 

newsletter – the Ombudsman’s 

Commentary – highlights trends and 

issues, shares complaint handling 

good practice and draws attention to 

areas that require improvement. 

Many reports, in particular those 

about the NHS, are picked up by 

journalists. One case study concerns 

the process of an SPSO investigation 

into a complaint where an elderly man 

endured what the Ombudsman’s 

nursing expert described as “the worst 

case of pressure sores” she had ever 

seen. His hard-hitting commentary 

was reported and expanded on in 

several newspapers. His investigation 

findings were linked to concerns over 

the dignity of older people who are 

treated in hospital, and advocacy and 

patients’ groups also used it to 

highlight the issue. 

The Ombudsman’s report made 11 

recommendations to the health board 

concerned. The Ombudsman was 

pleased to report some months later 

that the board’s response “has been 

swift, thorough and systematic. Their 

actions demonstrate that the report 

has been studied in detail, lessons have 

been learned and steps put in place to 

improve health services not only in the 

hospital concerned, but across all 

levels of the organisation”. 

In 2009-10, the Ombudsman made 

in excess of 400 recommendations 

about more than 300 issues in over 50 

bodies. The recommendations are 

aimed not only towards putting things 

right for the individual person, but 

also to ensure that there is no 

recurrence of the problem. In this way 

the Ombudsman service works to 

resolve disputes, and to restore 

confidence and drive improvement in 

our public services. 


Property Property review 

As uncertainty continues over 

economic recovery, the Journal has 

been taking a closer look at the state of 

the property market in Scotland. Tim 

Power reports on the outlook as seen by 

professionals in the different sectors 

Forecast: 

cloudy 

The recession may be over, a new 

Government is in power and an 

emergency budget announced… so 

what does this mean for the future of 

property markets in Scotland? 

When asked to look into the crystal 

ball, “Just more of the same” was all 

the enthusiasm one solicitor could 

scrape, while wistfully recalling the 

heady days of soaring property prices 

during 2007-08. 

Since then the residential market 

has bombed and, although prices are 

now recovering slowly, most industry 

experts still see lean years ahead as 

confidence in the economy remains 

weak, public sector jobs are threatened 

and restricted access to finance 

continues to strangle the market. 

Although the investment market 

enjoyed a resurgence towards the end 

of 2009, it too has fallen into the 

doldrums and the only interest for 

the near future will be in the prime 

properties in the market. 

In fact, this is true for all property 

sectors and the old adage “location, 

location, location” still holds up in 

post-recession Scotland. 

While one industry insider described 

the fall in the commercial market as 

like looking into a black hole, there 

are some signs of light to draw comfort 

from – but not that much to help 

illuminate the path forward, as the 

prospects remain mixed across most 

of the property sectors. 


Residential: 

more affordable? 

When the banks pulled the rug 

from under housebuyers by 

scrapping their fabled 110% 

mortgages and demanding deposits 

of at least 20%, the residential 

housing market literally collapsed – 

along with the aspirations of 

first-time buyers trying to get on 

to the property ladder. 

As a result, mortgage lending in 

the UK dropped significantly from 

its peak in 2007. 

According to the Council of 

Mortgage Lenders (CML), house 

purchase lending in Scotland 

mirrored the rest of the UK by falling 

33% in the first three months of 2010. 

There were 9,700 loans to Scottish 

homebuyers (worth £1.1 billion), 

down from 14,400 (worth £1.6bn) in 

the last three months of 2009. 

The fall largely reflects the fact that 

many homebuyers who would have 

normally bought in the early months 

of 2010 brought forward their 

purchases to take advantage of the 

stamp duty holiday on properties 

valued at under £175,000 before it 

ended in December last year. 

However, compared to the first 

quarter of 2009, mortgage loans in 

the first three months of 2010 were up 

28% by volume and 36% by value. 

First-time buyers accounted for 

40% of all house purchases in 

Scotland in the first quarter of 2010. 

This totalled 3,900 new loans – a 

39% increase on the trough seen a 

year previously. What is interesting 

is that the average deposit put down 

by first-time buyers was 23% of the 

property value. This is the first time 

average deposits for this group have 



House prices in Scotland (£000s) 2009-10 


April May June July August September October November December January February March 

Edinburgh 194 197 205 217 209 204 211 214 205 210 228 202 

Aberdeen 155 166 167 173 175 173 174 181 172 168 172 170 

Highland 147 156 154 155 151 153 160 160 153 149 160 142 

Borders 143 163 148 167 153 171 173 173 188 168 157 172 

Glasgow 122 130 128 144 137 138 139 134 135 130 134 121 

Dumfries & Galloway 127 103 132 146 139 124 135 145 141 131 144 142 

Scottish Average 140 145 150 155 153 154 155 155 156 150 151 144 

Source: Registers of Scotland: Land and Property Data (Shaded areas indicate prices below Scottish average) 




been below 25% since the end of 

2008 and the CML said this is 

evidence of some modest easing of 

affordability criteria for Scottish 

first-time buyers. 

While is it good news that more 

first-time buyers are getting their feet 

on the property ladder, they are still 

relatively few on the ground. 

Reema Mannah of title insurer 

First Title Insurance believes that 

more lower value residential 

properties are currently changing 

hands compared to the high end 

stock: “Individuals who own lower 

value properties are becoming more 

realistic about the value of their 

homes and the need to move on.” 

She expects to see knock-on effects 

from public spending cuts. 

Curious spread 

Scotland has a wide geographical 

variation in house prices: some of 

the highest prices are found in 

Edinburgh and, ironically, the lowest 

in Fife, just across the water. And 

Aberdeen lives in a world of its own 

– the city may be culturally twinned 

with Regensburg in Germany, but its 

economic soul is twinned with the 

price of Brent crude! 

The table on the previous page 

shows the range of geographical house 

price variations across Scotland. 

Most solicitors agree that the 

Rural property: 

supply and demand 

The rural market includes a 

wide range of properties, from 

shooting lodges and farms to 

forestry and land suitable for 

renewable energy projects. 

According to William Jackson 

from CKD Galbraith, the sporting 

estate market has held up well, 

as “trophy assets” are still a 

favourite purchase with the 

world’s rich elite who either like 

the privacy or the entertainment 

value of running their own 

fiefdom in the wilds of Scotland. 

He said: “The strength of this 

market is in its limited supply, as 

most are in family hands and kept 

for future generations. However, 

some owners do decide to sell after 

they have had their fun running 

an estate, and to ‘downsize’ to 

something a little less stressful.” 


residential property market is 

unlikely to return to the heady days 

of the 1980s-90s and they would be 

more than grateful to have a taste of 

the activity of 2007 again… but they 

are not too hopeful. 

Gordon Cunningham of Tods 

Murray said: “During 2009, we saw 

very little activity, mainly because 

there wasn’t much on the market as 

homeowners either did not feel 

confident enough about the future 

or were put off by the fall in 

property prices. 

“This year is different, thank 

goodness, as we have seen more 

people return to the market in the 

first half of the year to test the waters. 

We’ve seen a very gradual – but steady 

– improvement in house prices, but it 

could be better as we believe there 

is a lot of pent-up demand out 

there that is being held back by 

the difficulty of getting finance.” 

Mark Hordern, spokesman for 

GSPC, said that the signs of an 

upturn are almost here. “More 

properties are on the market and we 

are seeing movement in prime 

properties in the west end of 

Glasgow, which is always a precursor 

to an upturn in the wider market. 

However, it is still early days.” 

In Edinburgh, Wilson Hunter of 

Gillespie MacAndrew said that there 

has been a steady turnover in the 

higher end of the market, but lack of 

executive relocations has really hit 

There’s quite a price range to 

choose from: you could buy a small 

sporting estate in the Scottish 

lowlands for as little as £750,000, 

but a “proper” estate could cost 

between £3 and £5 million, and 

that doesn’t include the running 

costs which can exceed £100,000 

per annum, depending on your 

staff… and your entertaining! 

Despite the common 

perception that Russian oligarchs 

are buying up Scotland’s 

ancestral heritage, the main 

buyers in the market in recent 

years have been British, 

European and American. The last 

sale to a Russian was Aberuchill 

Castle Estate in Perthshire for 

£6.8 million in 2005, hardly 

denting the steel magnate 

buyer’s £5.4 billion fortune. 

Savills is 

more bullish 

and believes 

that price 

movements in 

the Edinburgh 

prime market 

herald a 

recovery 

for Scottish 

property as 

a whole 

Farming: limited activity 

There is much more liquidity 

in the Scottish farm market, 

either from farmers retiring or 

wanting to get out of the 

business completely. 

Higher food prices have helped 

farmers, but farm prices have 

the volume of sales. 

He believes the next 12 months 

will see steady growth 

in the non-prime residential market, 

but cautions whether the new 

Government’s programme of public 

sector savings will dampen the 

market as people fear for their jobs. 

Prime lead 

Savills is more bullish in its forecasts 

and believes that price movements 

been adversely affected by higher 

running costs for fuel and 

fertiliser and there is uncertainty 

about future income from 

subsidies due to the reform of the 

Common Agricultural Policy. This 

has also made banks keen to 

renegotiate overdraft facilities. 


New house builds 

Another big impact of the recession was 

felt by the house-building industry, 

which had to curtail many new 

developments across Scotland. Homes 

for Scotland estimates that 46,800 

direct and indirect jobs have been lost 

in the industry since May 2008 and this 

could be a skills issue for the future. 

New-build houses totalled 16,273 

during 2009, 29% lower than the 

number built in 2008, and 39% below 

that started in 2007. 

However, confidence in the new 

house market remains where prime 

sites are being developed. National 

House-Building Council statistics 

show that 1,987 new homes were 

registered between January and March 

2010, a 37% increase over the same 

period in 2009. 

David Knight, Managing Director of 

Miller Homes in Scotland – the largest 

in the Edinburgh prime market 

herald a recovery for Scottish 

property as a whole. 

In its new Scottish Property 

Market Research report covering 

the first quarter of 2010, it 

foresees Edinburgh’s equity-rich 

homebuyers leading the Scottish 

market out of the doldrums. 

Savills’ Research Director 

Lucian Cook said history is 

repeating itself: “In the mid to 

The Scottish farm market was 

kept buoyant in recent years by 

Ireland’s appetite for farming, 

fuelled by the country’s 

booming economy, but this 

interest has since waned. 

However, with little on the 

market at present, prices have 

held up. The same goes for rural 

housing as the increase in 

purchases of holiday homes over 

the past few decades has 

reduced supply, particularly on 

the west coast and on the 

islands – much to the chagrin of 

local people trying to get on the 

property ladder. 

The recent Government push 

behind the development of 

renewable energy in Scotland 

has also had a positive effect 

on land prices, particularly with 

the introduction of feed-in 

tariffs to allow landowners to 

sell surplus power back to the 

grid. This has led to speculative 

acquisitions and sell-offs of 


independent home builder in Scotland 

and recently crowned House Builder of 

the Year in the Scottish Homes Awards 

– has confidence in the future. “The 

fundamentals are still there for new 

properties that are well located, but we 

are having to adapt to a much lower 

level of demand.” 

Knight said the new environment has 

also led to a new model of funding land 

purchases, with house builders and 

landowners coming to a mutual 

understanding about creating a 

sustainable future in this sector. 

He explained: “In this current economic 

climate, landowners are now prepared to 

take a range of part-payment deals and 

final payments on completion of sales of 

properties. This means they are now 

having to share some of the risks which, 

until now, had been totally shouldered 

by house builders.” 

late-1990s, the prime Edinburgh 

market led the recovery, and with 

values rising 6.6% in the 

last six months, according to 

Scottish prime indices, a similar 

pattern seems to be emerging.” 

The report explained that 

London prices are usually the 

first to recover following a 

recession, with the effects being 


land with exposure to high 

winds, good access and 

located near existing grid 

connections. The Government’s 

go-ahead for the Beauly-Denny 

upgrade will also give a 

premium to suitable land as its 

power line develops. 

Access to funding has been 

less restricted in the rural 

property market compared to 

the residential market, as the 

main banking specialists in 

this field include the Co-op 

Bank and Clydesdale Bank, 

whose more conservative 

approach to banking has left 

them relatively unaffected by 

the “casino” antics of their 

larger competitors. 

However, two areas that have 

dried up because of finance 

and lack of demand are the 

development of steadings for 

residential or business premises 

and the selling of land for new 

housing developments. 




felt in the Scottish markets between 

six months and one year later. 

Cook added: “In Scotland, 

where affordability is higher than 

the rest of the UK, the market is 

traditionally less volatile and 

deposit affordability among 

homeowners is marginally better 

than the rest of the UK. 

“We expect a secondary lag of 

potential price falls to be less severe 

than south of the border, but 

equally for price growth thereafter to 

be more modest. The prime 

markets, which are much less 

mortgage-reliant and more driven 

by equity-rich purchasers, will 

perform much more strongly over 

the next five years,” he added. 

Well oiled 

Aberdeen tends to move in different 

cycles to the rest of Scotland’s 

property market. Its fortunes are very 

much tied to the relative health of 

the oil industry, as shown by the 

ASPC average property price in 

quarter 1 of 2010 of £188,995, well 

above the UK average of £168,000 – 

a difficult market for first-time buyers 

since the large majority of properties 

are over £125,000. 

Despite a run of steady and 

high oil prices, Denise Merson, 

Residential Property Director of 

Ledingham Chalmers and Director 

of ASPC, said that there is still a 

degree of hesitancy in the housing 

market which indicates that full 

confidence has not yet returned. 

She said: “Although we’ve seen 

more properties coming to the 

market, rising from 92 in the first 

week in January to a peak of 232 in 

May, sellers’ expectations have risen 

and there has been a spate of 

competitive closing recently that has 

driven prices up, in some cases by 

20%, above home report valuations. 

“I feel that there are a lot of people 

watching and waiting to see 

how the market 

develops. It is 

reasonable at the 

moment, but it’s 

certainly not as 

strong as a couple 

of years ago,” she 

added. 


Commercial property: changed world 

The main problem facing the 

commercial property market 

is financing. About 75% of 

the market in Scotland was 

funded by two banks – RBS 

and HBOS – and other banks, 

wary of this market, have 

significantly tightened up 

their lending criteria. 

This is not a problem for 

institutions who can access 

their own funds, but it has 

effectively killed off speculative 

property development. 

Susie Thornton from 

Tods Murray said the market 

has entered a new era in 

financing. She said: 

“Property finance is still 

available, but not at the 

same conditions as before. 

Loan-to-valuation ratios have 

fallen to typically 60-70% 

and far more due diligence 

work is required now on the 

serviceability of the loan, the 

underlying value of the asset 

and income forecasts.” 

As there is some new 

commercial property 

development in the pipeline, 

this will be beneficial to 

the property market in the 

long term – but it is of little 

help now. 

Douglas Hunter of Dundas 

& Wilson takes a positive 

stance and believes there will 

always be a market for prime 

UK property. He cites the 

Investment Property Forum’s 

recent UK Consensus Forecast 

which predicts “a sharp 

improvement in performance 

in 2010, followed by a dip in 

2011 and recovery in 2012”, 

with the best return in the 

office sector. 

Offices: steadying the ship 

Scotland has shown some 

resilience in the face of the 

recession, with major 

organisations such as Shell, 

BNP Paribas, National Trust for 

Scotland, Wood Group and 

Deloittes taking significant 

office space in Glasgow, 

Edinburgh and Aberdeen 

during 2009. 

According to Ryden’s latest 

Scottish Property Review, sales 

and lettings are now at a 

reduced but steady level, 

running at around 75% of 

the long-term average. 

It’s certainly a demand-led 

market at the moment, with 

landlords, even with grade A 

space, offering substantial 

incentive packages to 

occupiers who can reciprocate 

with strong covenants. 

However, this level of 

discounting is not sustainable 

as the supply of grade A 

property is restricted, and with 

little new office development 

Offices on the 

River Clyde 

in Glasgow 

in the pipeline, it will 

ultimately result in a reduction 

in the level of incentives and 

an increase in rents. 

Industrial: modernising 

Once again, Scotland appears 

to be more resilient to the 

recession, but this was due to 

the shortage of modern 

industrial premises going into 

the downturn and, with little 

new development since, this 

has kept the industrial 

property market buoyant. 

Rental levels have remained 

steady and there is particular 

demand for smaller units and 

those that have good access 

to major transport links. 

Retail: patchy 

With many famous retailers 

going to the wall over the 

past few years, it is surprising 

to see that the retail market 

has kept its head above water. 

Ryden’s report highlights 

how food and large discount 

retailers, plus those located in 

out-of-town shopping 

centres, have done well out of 

the reasonably strong level of 

consumer expenditure during 

the recession. 

However, the market for 

non-prime property on or off 

the high streets of Scotland 

has suffered. 


Investment property: 

asset banks 

Last year, the smart money was in 

property with a surge of investment 

acquisitions that helped lift the prime 

section of the market. But this 

spending spree has since dried up. 

According to Paul Jenning of Bell 

& Scott, the market has been very 

subdued this year, with the only real 

interest in grade A properties in core 

locations with strong covenants. 

Reema Mannah of First Title 

Insurance says institutional investors 

are once again looking for long term 

yields. “Not surprisingly, there is a lot 

of activity in the market around 

renewable energy sites.” A market that 

is increasingly risk averse is fuelling 

demand for title insurance. 

Douglas Hunter from Dundas & 

Wilson is worried about the future of 

the market and believes it is sitting 

on a potential time bomb. 

While property investment 

has become an anathema to 

most banks, they are still 

sitting on considerable 

property assets and 

are under 

considerable 

pressure to 

get rid of them. 

Hunter explained: 

“The Government 

has told banks to 

reduce their property 

portfolios to create 

more balance in 

their underlying 

Turnaround times as at 26 June 2010 

Where it is in the Keeper’s power and is legally appropriate: 

Target: To complete the registration of sasine writs within 

an upper limit of 40 working days, 80% within 20 days. 

11,964 received since 1 April 2010 

8,805 or 73.6% despatched within 20 working days 

0 despatched between 21 and 40 working days 

3,159 or 26.4% are currently in the arrear. 

No sasine writs despatched in more than 40 days. 


assets, but the banks are in a catch- 

22 situation: a fire sale of property 

would depress the market further 

and erode the value of their assets, 

while to hang on to them longer 

will just exacerbate the situation.” 

And there are more properties 

being released on to the market 

from the portfolios of companies 

such as Kilmartin and Kenmore that 

went into liquidation. 

It would appear the timing of 

property sales will be a real issue for 

the banks to retain the maximum 

possible prices for their assets without 

tipping the market into freefall. 

Registers of Scotland 

Target: To complete the registration of dealings with 

whole carried out as ARTL transactions within 24 hours. 

Of the 1,791 R1 and R2 dealings with whole 

carried out as ARTL transactions, all were 

completed within 24 hours. 

Note: the percentages achieved will always be lower at the start of a financial year as the availability of 

working days to process each of the products has not yet elapsed. 

The banks are 

in a catch-22 

situation: a fire 

sale of property 

would depress 

the market and 

erode the value 

of their assets; 

while to hang 

on to them 

longer will just 

exacerbate 

the situation 

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: 

What next? 

Crystal-ball gazing for most 

commentators on the property 

market is at best hazy and most 

are writing off any signs of 

significant improvements this 

year, hoping for better times in 

2011-2012. 

Confidence is the key driver 

for the property markets and 

it’s not at high enough levels to 

galvanise the markets. 

High on most people’s wish 

list is a period of steady 

economic growth, but the jury 

is still out on what influence the 

new Government’s fiscal policy 

measures will have, 

particularly as it is looking 

for considerable cost cutting in 

the public sector – a significant 

employer in Scotland. 

“Subdued” and “fragile” 

are two words that many 

commentators chose to 

characterise the markets for 

the near future. 

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. 

39,194 such transactions received since 1 April 2010 

18,919 (48.3%) despatched within 60 working days 

1 (less than 0.1%) despatched within 61 to 120 working days 

20,274 (51.7%) are in the arrear. No such cases have been 

completed in more than 120 working days. 


Sidelines Members abroad 

Working 

the world 

Being half French, Philippe McAllister took readily to working 

in Brussels and then Paris, but still values his Scottish roots 

What has been your career to 

date and how did you come to 

be working where you are? 

I was born and brought up in 

Glasgow. My father was Scottish, 

from Ayrshire, and my mother is 

French, having her roots in the 

Jura, a region to the east of France. 

The household was bilingual, 

sometimes to the bemusement of 

friends invited to the house. 

Perhaps inspired by an early 

international treaty, the 1295 

Auld Alliance signed by John 

Balliol and Roi Philippe IV, I 

quickly settled for law. 

At Glasgow University, I 

majored in EU law but was 

disappointed not to have access 

to any European law files during 

my apprenticeship with a 

Glasgow firm. The one anti-trust 

referral to the Commission was 

jealously guarded by a senior 

partner. At the time, there was still 

hot debate on the process for 

discretionary referrals by national 

courts to the European Court of 

Justice, captured, notably, in 

Bulmer v Bollinger (1974). 

As a result, I sought a first 

work assignment abroad and 

thoroughly enjoyed a stage in 

the legal department of the 

European Parliament. We were a 

close group, from the various 

member countries, updating the 

Parliament’s legal publications 

and researching responses to 

questions raised by MEPs. Based 

in Luxembourg, we travelled to 

Brussels and Strasbourg when 

parliamentary sessions were held 

there. I enjoyed the camaraderie, 

was hooked by the varied nature 

of the work and struck by the 


ways in which each nationality 

approached a legal issue at hand. 

I then spent some time in 

London, in a law firm and as inhouse 

legal counsel, but in 1989 

was pleased to be offered a job 

for a multinational corporation 

based in Paris. I’ve been based in 

the French capital ever since, 

working for a variety of French 

companies with a strong 

international presence. 

At present, I am deputy 

general counsel and secretary to 

the board of directors, working in 

telecommunications products and 

services. In addition to managerial 

responsibilities, I focus on 

commercial and corporate law 

and corporate governance. I do 

not travel as frequently now, but 

act as travel agent when board and 

committee meetings are held 

outside France: in the US, China, 

and recently in the Middle East. 

I have never seen my Scottish 

legal training as a hindrance to 

working internationally. The 

English language is very often a 

common denominator in 

negotiations and written 

agreements. Clients look for 

clarity in reasoning and 

solutions. In France, a foreign 

qualified lawyer can practise as 

an in-house lawyer with no 

requirement to qualify locally. 

Do you see yourself as 

staying there long term? 

I enjoy working in Paris and 

living in France. Recently, I was 

based in London for two years 

and then spent another two years 

regularly commuting between 

the two capitals, becoming too 

familiar with the Eurostar 

timetable. I found London much 

more dynamic and vibrant than 

during my first experience there. 

What do you most like 

about living and working 

where you are? 

Paris is an excellent centre for 

international trade and I have 

found that French managers can 

often propose a unique and 

successful approach in 

negotiations. People from 

different nationalities have their 

own method in seeking advice 

from a lawyer. I like the 

challenge of this environment, 

trying to ensure that the legal 

advice we give is tailored and 

understood. No two days are 

the same. 

Are there any downsides? 

Public transport strikes! Any 

point or goal scored by France 

against Scotland in rugby or 

football. I have been suffering for 

many years. 

What is the value to you of 

retaining your Law Society of 

Scotland membership? 

At one time, I recommended 

that the corporation I worked 

for adopt Edinburgh as the seat 

for international arbitrations, 

following early adoption of the 

UNICTRAL model law, as a 

convenient alternative to better 

known centres. International 

events are increasingly the basis 

for new legislation: in my area of 

practice, on ethics, on corporate 

governance, on corporate social 

responsibility, on executive 

officer remuneration. The 

Society website and the Journal 

are an invaluable and familiar 

source of comparative 

information on these topics. 

Information on the progress of 

former colleagues is welcome. 

Do you miss Scotland? 

I rarely return, but have fond 

memories of trips to the 

Highlands. Since moving to 

Paris, we have spent family 

holidays in Corsica and I found 

the wild nature and colours and 

topography very similar to the 

parts of north Scotland I had 

visited. The Corsican sun was 

very different! 

What would be your advice 

to anyone thinking of making 

a similar move? 

If your mind is made up, you 

will succeed. If possible, plan 

the move ahead to anticipate 

administration. Any initial 

sensation of isolation will soon 

disappear. 

The Journal would like to hear from more 

Scottish solicitors working abroad. Contact 

peter@connectcommunications.co.uk if you 

would like to feature in this column. 


Manus Straw’s alternative take on 

the legal headlines of the past month 

Blamer v 

Disclaimer 

Tickets to hide 

“Manus,” a wise partner once gravely 

intoned, “in this business, you either get 

a reputation for being a Details Man, or 

you get a reputation for being an Idiot.” 

Overcoming my disappointment at not 

being able to gain repute as a Ladies’ 

Man, I recognised his sound advice. He 

didn’t let me near anything involving 

any kind of detail, so I settled instead 

for scrutinising the parking tickets 

which I accumulated on a regular basis. 

I never did manage to get any of them 

overturned on an obscure legal 

technicality, but as a prospective Details 

Man I was happy that I tried. 

I am sure similar logic has been 

applied by the law firm assistant who 

has had to appear at Aberdeen Sheriff 

Court to explain £18,000 worth of 

unpaid parking tickets. The lady has 

clearly just become too enthusiastic 

about proving her worth as a Details 

Woman. In any event the case against 

her sounds about as sensible as her 

parking. If her car was as full of tickets 

as the prosecution claims, how was she 

even able to see out the windscreen? 

Overall it sounds like a miscarriage of 

justice. Ah, if only we had a Scottish 

Human Rights Commission. 

Can I get a witness? 

Hang on – it seems we have got a 

Scottish Human Rights Commission 

(SHRC). Did anybody know about 

this? Not only does it exist, but it has 

recently been recognised by the 

United Nations and awarded Grade A 

status – the highest UN accreditation 

possible. Heady stuff, and according 

to SHRC this award is based on its 

effectiveness to date. However, what it 

has actually been effective at isn’t 

entirely clear. I’d wager that the more 

SHRC is recognised in Scotland (i.e. 


The ugly 

truth is that, 

regardless 

of minimum 

pricing, the 

lowly and 

downtrodden 

will always be 

able to scrape 

together 

enough for one 

more bottle of 

cider. But that’s 

enough about 

trainees 

the more it actually has to field 

complaints), the less it will be 

recognised by the UN! 

Whinge drinking 

The Scottish Government’s 

imaginatively titled “Alcohol Etc 

(Scotland) Bill” has been allowed to 

go forward at stage 1– without the 

contentious provisions regarding a 

minimum price per unit of alcohol. 

I’ve heard this issue debated so often 

by politicians, and with so little logic, 

that I often wondered if they were 

more smashed than the drunks they 

were seeking to suppress. The ugly 

truth is that, regardless of minimum 

pricing, the lowly and downtrodden 

will always be able to scrape together 

enough for one more bottle of cider. 

But that’s enough about trainees. 

Scottish football’s 

unacceptable face 

The Scottish Football Association 

(SFA) and Scottish Premier League 

(SPL, or SPHell, depending just how 

grisly the last match was that you were 

unfortunate enough to witness) have 

been accused by the Children’s 

Sidelines Manus Straw 

Commissioner for Scotland of 

abusing the rights of promising young 

footballers. (Hopefully the ones from 

Brazil, was my initial reaction.) 

Seriously, the Commissioner, Tam 

Baillie, wishes to end the practice of 

registration contracts for young players. 

Once that’s sorted, maybe the SHRC 

can step in and give our kids some sort 

of rights to play for a country which 

might actually qualify for the World 

Cup. Or to play in a league which 

doesn’t promote the unacceptable face 

of Scottish football – Scott Brown’s 

(had to get that one off my chest). 

The colour of money 

Kenneth Murray of the Scottish Crime 

and Drug Enforcement Agency has 

claimed that the number of 

prosecutions under the anti-money 

laundering legislation has been 

disappointing. Mr Murray suggests that 

financial complexity is feared by police 

and prosecutors. He may have a point. 

Personally, I still shudder when I think 

of the time I delivered a presentation 

singing the praises of money laundering 

practices, only to be pulled aside by a 

fellow Details Man and informed that 

“anti-money laundering” was perhaps 

the practice more deserving of praise. 

Even now, when somebody says 

“money laundering” I just think of Joe 

Pesci throwing bags of cash over a poker 

table in a Martin Scorsese movie. 

Nowhere to bona fide 

I see that several of Glasgow’s premier 

law firms are abandoning their 

traditional rabbit warrens for shiny 

new open plan offices. The press 

releases bluster about “enabling 

colleagues to work together more 

effectively”. But you know fine well 

that everybody involved will be scared 

stiff. There’ll be no more hiding from 

bosses in rooms, no more “careful 

filing” of documents in piles on floors, 

no more escape from colleagues with 

the phone manners of sociopaths, and 

no more easy dodging of Bradley from 

Banking to let the dust settle from your 

regrettable Christmas party clinch. 

When I think back to my traineeship, 

and the rich tapestry of escapades 

which an open plan office would have 

made completely impossible, it 

actually makes me feel a bit weepy. 

Cadder crisis 

And finally, I should acknowledge that 

there’s a crisis in the Crown Office. 

What is it? Well it’s the prosecution 

system in Scotland of course! 

Manus Straw is the pen name of a 

practising solicitor 


Sidelines Books extra 

Books, but not 

as we know them 

Book Review Editor 

David J Dickson tests 

two of the electronic 

book readers now 

on the market, and 

assesses their 

potential 

With the launch of the iPad we are 

perhaps inclined to forget about the 

other available devices dedicated to 

accessing electronic books. It is 

estimated that the electronic book 

market will be worth $25bn by the 

end of 2020, and account for 13% of 

the market by 2015. 

Two of the market leaders are the 

Amazon Kindle (recently reduced to 

$189) and the Sony E Reader (£229 

plus 100 free books to download). 

Both have the same core function 

but offer the option of accessing 

electronic books in different ways. 

Both are superb pieces of kit. 

The Sony comes in two editions, 

with the touch screen being the most 

versatile. It can store 350 books, but 

with an SD slot extends to almost 

limitless quantities of books. It has 

very easy text highlight, note function 

and picture storage. The sound 

quality is stunning. The Sony 

remembers where you last read on 

the text and you easily pick up again. 

Unlike the Sony device, the Kindle 

is 3G global wireless connected with 

What’s available 

A trial run on two titles 

available in e-format 

Solar by Ian McEwan (Jonathan 

Cape, £18.99) is available as an e-book. 

It humourously describes the highs and 

lows of Nobel Prize winner and serial 

womaniser Professor Michael Beard’s 


no subscription. There is a choice of 

more than 600,000 books at the 

Amazon bookstore. The book can be 

sampled, purchased and ready to read 

within less than a minute. The device 

can store 1,500 books. If you are tired, 

the Kindle will also read the text to you 

in either a male or female voice. 

The Kindle comes preloaded with 

newspapers and magazines available 

for subscription and daily download. 

It has internet access which worked 

fairly well. It also allows notes 

to be taken and has a small but 

manageable keyboard on the front. 

Both devices allow the text size to 

be enlarged, which is surprisingly 

useful. Both are incredibly light with 

standard 6 inch screens, but the 

involvement in the development of 

renewable energy and tackling of global 

warming, initially as a result of a tragic 

accident to a colleague. The story moves 

across continents and over a number of 

years, during which Beard’s professional 

and private lives continually collide, and 

These devices 

are primarily 

aimed at 

leisure 

reading, but 

there is an 

increasing 

market in 

business and 

legal texts 

available in 

electronic 

format 

builds to a crescendo. A superb and 

elegiac book. 

Quicklook@law by Peter McGarrick 

(Montpellier) is a short introduction to 

mainly English law. However it is a 

valuable example of the format that legal 

Kindle has a larger 9 inch screen on 

offer. The screen sizes are more than 

adequate. The Kindle offers a slightly 

lighter, more booklike effect through 

its e-ink, whereas some colleagues felt 

the Sony was easier to read with the 

text on a slightly darker background. 

These devices are primarily aimed 

at leisure reading, but there is an 

increasing market in business and 

legal texts available in electronic 

format. They were both a joy to use 

and have huge potential, only being 

limited to the imagination of the use 

to which they can be put, from noting 

legal texts to saving your important 

cases on the SD to read on the move. 

No more suitcases of books when 

heading on holiday. 

texts may take in future. The book is 

distributed in PDF format, but is 

innovatively copywritten to ensure 

protection for the author and publisher. A 

legal text in this format could ensure that 

books are rapidly updated. Worth keeping 

an eye on this format. 


Louise Farquhar looks for some places where you can 

still get a sense of freedom and adventure behind the wheel 

Six of the best... 

Road trips 

The modern package holiday is great for 

tired and busy people but it might not 

satisfy your basic wanderlust nature. 

Getting behind the wheel of a car, on the 

other hand, gives you freedom to set the 

pace and make spontaneous changes to 

go and explore. Just throw in your 

suitcase, along with some maps and a 

guidebook, and you’re all set to go. It 

makes a welcome change from those 

traffic lights on the way to work! 

Here are my top six ideas: 

Amalfi Coast, Italy 

The Costiera Amalfitana hugs the 

Sorrento Peninsula and is widely 

recognised as Italy’s most scenic stretch 

of coastline. Starting from Salerno, the 

drive takes in the pretty towns of Amalfi, 

Positano and Ravello. The famously 

winding roads are challenging to drive; 

not only are they perilously narrow but 

Italy’s stunning 

Amalfi Coast 

From the Journal archives 

50 years ago 

From “Long Service”, July 1960: 

“One still hears, despite the 

introduction of superannuation 

funds, of long service by 

employees and there are still one 

or two who can claim this with 

various legal firms. It will be very 

difficult to better the record of 

Mr Alexander Kemp who is still 

employed with Messrs Jenkins & 


Italian drivers are feisty behind the 

wheel. Pastel coloured houses, towering 

cliffs and emerald waters offer 

spectacular views. Hotel Il San Pietro 

di Positano is an ideal stop-over. 

www.ilsanpietro.it 

Antrim Coastal Route, Ireland 

This road is a much more interesting drive 

than its name, the A2, would suggest. The 

route takes you along the coast of County 

Antrim, between Larne and Ballycastle, 

passing deserted beaches and dark cliffs 

plunging to the sea. Every twist and turn 

reveals another castle, church or fort 

steeped in history. The Giant’s Causeway 

is within easy reach. For an overnight stay, 

the Whitepark Bay Hostel has fantastic 

modern facilities and great views – at a 

good price too! 

www.hihostels.com/dba/country- 

NIE.en.htm 

Jardine, Solicitors, Stirling. Mr 

Kemp commenced with the firm 

(then A. & J. Jenkins) in 1881 and 

is at his desk punctually every 

morning.” 

25 years ago 

From “Preparing for retirement”, 

July 1985: “Larger groups must 

gradually introduce full 

retirement at sixty-five or earlier 

Sidelines Six of the best 

Seward Highway, Alaska 

This 127-mile highway spans 

the awesome natural beauty 

of south central Alaska 

between Anchorage and 

Seward. Jagged peaks and 

alpine meadows mix with spectacular 

fjords and crystal clear lakes. Beluga 

whales and eagles are common sights on 

the first section as the road skirts the 

Chugach Mountains. Set aside a long 

weekend for this trip to ensure plenty 

time for taking photos. Stop at the Trail 

Lake Lodge in Moose Pass for a relaxed 

overnight stay. 

www.traillakelodge.com 

Route 66, USA 

This is the all-time classic road trip, known 

as Main Street, USA. This highway was 

once a major commerce route until it was 

decommissioned in 1985. Since then it has 

taken on a “ghost town” feel in some parts 

as it passes dilapidated motels and diners. 

East to West is the best way to go, starting 

in Chicago and ending in California’s Santa 

Monica Boulevard. Don’t miss the 

Oklahoma museum which gives you all the 

folklore and history. The route can be quite 

inaccessible in places so a good map is 

essential. Get your kicks on Route 66! 

www.route66.org 

Loch Lomond to 

Tighnabruaich, Scotland 

Home birds can rely on Scotland to provide 

plenty of driving routes brimming with 

stunning vistas, good hospitality and 

relatively quiet roads. One of the best 

to provide an attractive 

career prospect for the 

able young qualifier 

whom they seek to recruit. 

The professional partner 

faces a reduction of the 

working phase of life from, say 

fifty years or more to thirty to 

thirty-five years and a retirement 

probably doubled from, say, ten 

to twenty years to twenty to 

Moose Pass, 

Alaska 

starts by the shores of Loch Lomond 

and finishes in the scenic village of 

Tighnabruaich. A stop at the Loch Fyne 

Oyster Bar is highly recommended before 

heading for some of the most sublime 

views in the world. The last 10 miles, on a 

narrow road that climbs 500 feet, offer 

spectacular views over the Kyles of Bute 

where islands seem to float on the horizon. 

www.lochfyne.com 

Karakoram Highway, India 

Spanning some extremely rugged and 

remote country, this 1,200 kilometre ribbon 

of asphalt is one of the world’s highest 

paved roads. Following part of the old Silk 

Road, the highway connects China and 

Pakistan, weaving past raging rivers, deep 

ravines and ragged peaks on the way. 

7,000 year old rock art decorates the many 

caves to be explored on the route and 

climbers use the road to access famous 

mountains like K2 and Nanga Parbat. The 

Hunza Baltit Inn is perched above the 

highway in the ancient town of Karimabad. 

www.serenahotels.com/serenahunza 

For further ideas see: 

Great Ocean Road, Australia 

www.greatoceanrd.org.au 

Garden Route, South Africa 

www.gardenroute.com 

twenty-five years or more, and 

starting long before their 

faculties are reduced.”

Professional briefing - The Journal Online

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