Professional briefing - The Journal Online
Professional briefing - The Journal Online
Professional briefing - The Journal Online
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Vol 54 No 12 DECEMBER 09 www.journalonline.co.uk<br />
THE MEMBER MAGAZINE FOR THE LAW SOCIETY OF SCOTLAND<br />
Are solicitors<br />
warming to home reports,<br />
after the first year’s experience?<br />
ALSO INSIDE: SERVICE PROVIDERS / PARALEGALS / MISSIVES<br />
For online recruitment visit the new website www.lawscotjobs.co.uk<br />
Message<br />
for the bottle<br />
Could alcohol minimum<br />
pricing be legal?<br />
Hoops for<br />
lenders<br />
Impact of the<br />
Home Owner Bill<br />
VAT traps<br />
Dos and don’ts<br />
of the rate rise
Contents Vol 54 No 12 December 2009<br />
Regular items<br />
4 Current consultations<br />
5 Editor<br />
6 Update<br />
Next year’s CPD seminars<br />
7 President<br />
Festive film with a message<br />
8 People<br />
9 Opinion<br />
David Sandison: Gill & PI cases<br />
10 Letters<br />
Legal aid issues; ABS openings<br />
22 <strong>Professional</strong> news: Society<br />
(More in the box below)<br />
28 Notifications<br />
36 <strong>Professional</strong> practice<br />
36 Lawyers and LinkedIn<br />
37 Ask Ash<br />
38 IT: Service via Facebook<br />
40 Risk: client communication<br />
42 <strong>Professional</strong> <strong>briefing</strong><br />
42 Criminal court<br />
44 Intellectual property<br />
45 Criminal practice<br />
46 Agriculture<br />
47 Sport<br />
48 European Union<br />
49 Discipline Tribunal<br />
50 Websites<br />
51 Book reviews<br />
52 In House<br />
Annual meeting addresses<br />
54 Property lawyer<br />
54 Standard missives<br />
56 Property news<br />
58 Climate change burdens<br />
59 Sidelines<br />
Manus; Working abroad; Six, etc<br />
63 Classified<br />
65 Recruitment<br />
Contact<br />
<strong>Journal</strong><br />
staff and<br />
contributors<br />
PUBLISHERS<br />
<strong>The</strong> Law Society of Scotland<br />
26 Drumsheugh Gardens<br />
Edinburgh EH3 7YR<br />
t: 0131 226 7411<br />
f: 0131 225 2934<br />
e: lawscot@lawscot.org.uk<br />
w: www.lawscot.org.uk<br />
President: Ian Smart<br />
Vice-President: Jamie Millar<br />
Chief Executive: Lorna Jack<br />
EDITORIAL OFFICE<br />
Connect Communications<br />
Studio 2001, Mile End, Paisley<br />
PA1 1JS<br />
t: 0141 560 3018<br />
f: 0141 561 0400<br />
e: journal@<br />
connectcommunications.co.uk<br />
w: www.journalonline.co.uk<br />
Editor: Peter Nicholson<br />
t: 0141 560 3018<br />
e: peter@<br />
connectcommunications.co.uk<br />
Review editor: David J Dickson<br />
Website news: Brian Henson<br />
e: news@<br />
connectcommunications.co.uk<br />
Design & production:<br />
Alan Morton, Paul McGinnity,<br />
Mark Davies<br />
Advertising sales:<br />
t: 0131 561 0023<br />
e: journalsales@<br />
connectcommunications.co.uk<br />
DISCLAIMERS<br />
<strong>The</strong> views expressed in the <strong>Journal</strong><br />
of the Law Society of Scotland are<br />
those of invited contributors and<br />
not necessarily those of the Law<br />
Society of Scotland. <strong>The</strong> Law<br />
Society of Scotland does not<br />
endorse any goods or services<br />
advertised, nor any claims or<br />
representations made in any<br />
advertisement, in the <strong>Journal</strong> and<br />
accepts no liability to any person for<br />
loss or damage suffered as a<br />
consequence of their responding to,<br />
or placing reliance upon any claim<br />
or representation made in, any<br />
advertisement appearing in the<br />
<strong>Journal</strong>. Readers should make<br />
appropriate enquiries and satisfy<br />
themselves before responding to<br />
any such advertisement, or placing<br />
reliance upon any such claim or<br />
representation. By so responding,<br />
or placing reliance, readers accept<br />
that they do so at their own risk.<br />
On no account may any part of this<br />
publication be reproduced without<br />
the written permission of the<br />
copyholder and publisher,<br />
application for which should be<br />
made to the publisher. © <strong>The</strong> Law<br />
Society of Scotland, 2009<br />
ISSN: 0458-8711<br />
47 Handball, ref? 18 Bottom (prices) up<br />
Total Net<br />
Circulation: 10,833<br />
(issue specific May 09)<br />
Av. Net Circulation:<br />
10,712 (Jul 08-Jun 09)<br />
Subscription Information:<br />
Practising Certificate (inclusive cost)..................£635<br />
Non Practising Certificate<br />
(UK and Overseas, inclusive cost)......................£220<br />
Annual subscription UK ....................................£84<br />
Overseas ........................................................£108<br />
Trainees ............................................................Free<br />
www.lawscotjobs.co.uk<br />
12 Coloured opinions<br />
Features<br />
12 Wisdom of experience<br />
One year on, how well are home<br />
reports working? We canvass views<br />
from round the country<br />
15 Making a splash<br />
<strong>The</strong> Registers page: Registers Direct<br />
and ARTL in big combined launch<br />
16 Greatly indebted<br />
What the Home Owner and Debtor<br />
Protection Bill means for borrowers<br />
in arrears, and their lenders<br />
www.journalonline.co.uk<br />
38 Can they catch you like that?<br />
18 Strong drink arguments<br />
<strong>The</strong> EU law issues surrounding the<br />
proposed alcohol control measures,<br />
and why tobacco may be different<br />
20 What went down, goes up<br />
How the VAT rise affects transactions<br />
in progress, especially legal services –<br />
and a potential cash flow gain<br />
29 Service Provider Scheme<br />
Special supplement featuring<br />
suppliers in the Society’s scheme<br />
Society news><br />
Turn to pages 22-28 for training website;<br />
solicitor advocates; member survey<br />
feedback; paralegals; Complaints<br />
Commission. Website: www.lawscot.org.uk<br />
December 09 the<strong>Journal</strong> / 3
Consultations<br />
Brian Dempsey’s monthly survey of consultations that might be of interest to practitioners<br />
… the point is to change it<br />
Credit and store cards<br />
<strong>The</strong> Department for Business, Innovation<br />
and Skills is reviewing regulations governing<br />
consumer credit and store cards and seeks<br />
views on such matters as minimum<br />
payments, unsolicited credit limit increases,<br />
and the repricing of existing debt. See<br />
consultation document and related<br />
materials at www.berr.gov.uk/consultations/<br />
page53299.html .<br />
Respond by 19 January 2010 to cscr@bis.gsi.gov.uk .<br />
Default retirement age<br />
<strong>The</strong> UK Minister for Pensions and the<br />
Ageing Society wishes to hear the<br />
experiences of businesses and individuals<br />
on the operation of the default retirement<br />
age, why businesses use mandatory<br />
retirement ages, and what impact the<br />
raising or removing of the default<br />
retirement age would have on individuals,<br />
businesses and the economy. This appears<br />
to be an open invitation to express views,<br />
New training framework – HELP WANTED<br />
As we move towards implementation of the new training framework in 2011,<br />
the Education and Training Committee is seeking the input of the profession<br />
Working parties<br />
We are seeking volunteers for working<br />
parties which will finalise the detail of the<br />
various stages of the new route to<br />
qualification. <strong>The</strong>se working parties are:<br />
Pre Diploma Training Contract – a<br />
review of this route into the profession, in<br />
the light of the Society’s commitment to<br />
promoting flexible routes into the<br />
profession.<br />
CPD working party – what will qualify<br />
as CPD in a flexible system, and how this<br />
should be captured, reflected on and<br />
reported to the Society.<br />
Requalification – a longer term project<br />
addressing new requalification rules under<br />
the new framework.<br />
4 / the<strong>Journal</strong> December 09<br />
with no consultation paper issued.<br />
Respond by 1 February 2010 to draevidence@bis.gov.uk .<br />
Vulnerable groups<br />
<strong>The</strong> Scottish Government has launched no<br />
fewer than nine consultation documents on<br />
the implementation of protection for<br />
vulnerable groups. Issues covered include<br />
“listing orders” for those deemed unsuitable<br />
to work with vulnerable people, and<br />
regulatory impact on public bodies, businesses<br />
and charities. See the various consultation<br />
documents (dated 10 November 2009) via<br />
www.scotland.gov.uk/Consultations/Current .<br />
Respond by 2 February 2010 to<br />
pvg.enquiries@scotland.gsi.gov.uk<br />
Asylum support<br />
In conjunction with the new draft<br />
Immigration Bill the UK Government wants<br />
to “streamline and reform the asylum<br />
support system”. See documents at<br />
Accreditation panel members<br />
We are seeking panel members to assist<br />
with accreditations of new Foundation<br />
(formerly LLB) and PEAT 1 (formerly<br />
Diploma) courses which will start from<br />
academic session 2011-12 across 10<br />
Scottish law schools.<br />
We are looking for members of the<br />
profession with experience of teaching or<br />
training, and members of the academic<br />
community.<br />
Accreditation dates will be set soon.<br />
<strong>The</strong> accreditation panels will meet to<br />
consider accreditation submissions from<br />
universities between spring 2010 and<br />
spring 2011.<br />
www.ukba.homeoffice.gov.uk/sitecontent/<br />
documents/aboutus/consultations/221878/<br />
simplifying-imm-law-new-framew1/ .<br />
Respond by 4 February 2010 to<br />
AsylumSupportReform@homeoffice.gsi.gov.uk .<br />
New immigration rules framework<br />
<strong>The</strong> UK Government wants to “simplify”<br />
immigration law to improve enforcement.<br />
See documents at www.ukba.homeoffice.<br />
gov.uk/managingborders/simplifying .<br />
Respond by 3 February 2010 to<br />
immigrationrules@homeoffice.gsi.gov.uk .<br />
And briefly …<br />
As noted last month, the Scottish<br />
Government seeks views on the delivery of<br />
the new general equality duty (respond by<br />
15 January 2010), and also on its draft code<br />
of practice in relation to the Education<br />
(Additional Support for Learning) (Scotland)<br />
Act 2009 (respond by 8 January 2010).<br />
Pilot organisations for PEAT 2<br />
(traineeship)<br />
PEAT 2 will introduce modern<br />
technologies to support both trainers and<br />
trainees, and will introduce new and<br />
improved assessment methods.<br />
We will be running a small pilot of<br />
PEAT 2 from September 2010, with a cross<br />
section of training providers.<br />
Indications of interest should be sent to<br />
consult@lawscot.org.uk . Please indicate<br />
what you are volunteering for in the<br />
subject line.<br />
www.lawscot.org.uk<br />
www.journalonline.co.uk
Difficult child<br />
Home reports have to enhance their credibility in the eyes of<br />
purchasers if they are to achieve what the Government intended<br />
Happy first birthday<br />
It was a difficult birth, so how has the<br />
infant scheme fared?<br />
A year after the introduction of<br />
home reports, published comment<br />
has still split along fairly predictable<br />
lines. <strong>The</strong> surveyor profession thinks<br />
they have been a great thing (some<br />
would say that it’s home reports that<br />
have kept them in business through<br />
the property slump); but somehow a<br />
large majority of solicitors still see<br />
things rather differently.<br />
Comments by solicitors to the<br />
Society, forwarded to me to inform<br />
this month’s lead feature, came in<br />
around 4:1 in favour of the view<br />
that they have been more of a<br />
burden than a help; and a straw poll<br />
at the High Street Conference at the<br />
end of November suggested a<br />
majority against, a smaller<br />
proportion neutral as to their effect<br />
and only a few who think they have<br />
been positively helpful. <strong>The</strong> views of<br />
the cross section whom I<br />
approached directly for their<br />
comments are reflected, I hope<br />
accurately, in the feature.<br />
What makes the overall picture<br />
harder to assess, however, is the<br />
degree of divergence of comment as<br />
to what happens in practice. Some<br />
solicitors report few problems with<br />
lenders; at the other end of the scale,<br />
at least one claimed that a purchaserinstructed<br />
valuation is routine.<br />
Whether purchasers are willing to<br />
take the home report at face value is<br />
equally variable, and it does not look<br />
as if this can be explained simply as<br />
due to regional variations.<br />
What should set a warning bell<br />
www.lawscotjobs.co.uk<br />
Editor<br />
Peter Nicholson<br />
Whether<br />
purchasers are<br />
willing to take<br />
the home<br />
report at face<br />
value is equally<br />
variable, and it<br />
does not look<br />
as if this can<br />
be explained<br />
simply as due<br />
to regional<br />
variations<br />
ringing for the Government,<br />
however, is the reports of significant<br />
differences between surveyors as to<br />
the current value of a property, and<br />
the encouragement this gives to<br />
sellers and their agents to prefer<br />
those known or believed to propose<br />
higher valuations, or even to adopt<br />
the “beauty parade” approach of<br />
asking for more than one desktop<br />
valuation and commissioning the<br />
home report on the basis of the best<br />
figure offered.<br />
<strong>The</strong> whole concept of the home<br />
report was sold on the basis that it<br />
would be an independent view that<br />
could be relied on equally by seller<br />
and purchaser, but if it is open to<br />
such manipulation, it will not meet<br />
this test and purchasers may well feel<br />
that they have no alternative but to<br />
commission their own valuation.<br />
Attitudes also differ as to whether<br />
there is anything wrong with such<br />
tactics, but it is a fact of life that<br />
parties to a transaction will each try<br />
and work the system to their<br />
advantage. If house sale and purchase<br />
in Scotland is really to be<br />
underpinned by a single third party<br />
assessment of the condition and<br />
value of a property, more will have to<br />
be done to underpin the integrity of<br />
that process.<br />
Reform, but not yet?<br />
A surprising item was reported in<br />
England recently when Henry<br />
Bellingham, the Conservative justice<br />
spokesman at Westminster came out<br />
as lukewarm over the liberalisation of<br />
the profession south of the border.<br />
He suggested that if in power, his<br />
Editorial<br />
party would slow down the process<br />
of legal services reform “if we<br />
possibly can”.<br />
Apart from the irony of Mrs<br />
Thatcher’s successors seeking to soft<br />
pedal on measures supposedly<br />
empowering of consumers and the<br />
market (and which have the weight<br />
of the big City practices behind<br />
them), one wonders just how such a<br />
policy could be given effect with the<br />
Act now in place and the new<br />
regulatory authorities pressing ahead<br />
with the necessary infrastructure. A<br />
likely five year period between the<br />
passing of the Act and its taking effect<br />
does not suggest undue haste, even if<br />
there is a very elaborate bureaucracy<br />
involved which we in Scotland are<br />
fortunately to be spared.<br />
It would be a further irony for<br />
Scotland if, having been given the<br />
initial push to reform on the back of<br />
the seemingly irreversible drive for<br />
change down south, we end up seeing<br />
the engine in England & Wales stall.<br />
But I still doubt it will come to that,<br />
even if there is a change of<br />
Government.<br />
Next year is already shaping up to<br />
keep us guessing; but more of that in<br />
good time. Season’s greetings to all.<br />
December 09 the<strong>Journal</strong> / 5
CPD EVENTS Coming soon<br />
Please view website for date announcements<br />
JANUARY<br />
Contingency Planning<br />
Company Law<br />
FEBRUARY<br />
2 ILG Seminar – Competition Law*<br />
11 ILG Seminar – Environmental Risk*<br />
18 CPD For New Lawyers – Learning to Manage Stress, Edinburgh<br />
25 ILG Seminar – Legal Update*<br />
Consumer Credit Road Show<br />
Mediation Conference<br />
Insolvency Road Show<br />
Licensing Conference<br />
MARCH<br />
04 ILG Seminar – Planning Law*<br />
11 ILG Seminar – Consumer Credit Act*<br />
16 ILG Seminar – Update on <strong>Professional</strong> Privilege Case Law*<br />
17 CPD For New Lawyers – Instructing Advocates, Glasgow<br />
18 ILG Seminar – Public Law*<br />
23 ILG Seminar – Information Management Law Update*<br />
25 ILG Seminar – Vulnerable Witnesses Act:An Update*<br />
Trusts & Executries for Paralegals<br />
<strong>The</strong> Law is IT Conference<br />
SOLAR Annual Conference<br />
Client Care Road Show<br />
Criminal Rights of Audience<br />
APRIL<br />
20 ILG Seminar – Is Public Procurement More Challenging?*<br />
21 CPD For New Lawyers – Instructing Advocates, Edinburgh<br />
27 ILG Seminar – Regulations*<br />
29 ILG Seminar – Changes in Legal Services Market*<br />
High Street Conference<br />
Client Care Road Show<br />
MAY<br />
04 ILG Seminar – Scottish Public Services:An Update*<br />
11 ILG Seminar – Health and Safety*<br />
18 ILG Seminar – Financial Update*<br />
25 ILG Seminar – IP Issues*<br />
Risk Management Road Show<br />
FOR FURTHER INFORMATION<br />
Details of venues, speakers, programmes and CPD hours are available on our<br />
website www.lawscot.org.uk/update . Update’s aim is to continue to produce<br />
good quality, affordable training for our members, and to help develop a<br />
comprehensive portfolio of events to support our members’ needs. If there are any<br />
events you would like us to run in 2010/11, or any comments you have about the<br />
Update events programme, please let us know.Also if you are interested in speaking<br />
at any of our events we would be more than happy to hear from you.<br />
Law In Scotland Annual Conference<br />
Client Relations Manager Training<br />
JUNE<br />
02 CPD For New Lawyers – Instructing Advocates, Inverness<br />
Anti-Money Laundering Road Show<br />
Planning for Retirement<br />
11&12 New Partners Practice Management Course<br />
Damages<br />
Immigration and Asylum Conference<br />
Personal Injury Conference<br />
SEPTEMBER<br />
Management Skills One Stop Shop Road Show<br />
Conveyancing Road Show<br />
Time Mastery for Lawyers – Frank Sanitate<br />
Employment Law Conference<br />
Private Client Conference<br />
Legal Advice for the older client<br />
OCTOBER<br />
Buying and Selling Rural Property<br />
Legal Aid Conference<br />
Legal advice for the older client<br />
Criminal Justice Bill Seminar<br />
Agricultural Conference<br />
Civil and Criminal Court Conference<br />
Arbitration Bill Seminar<br />
NOVEMBER<br />
Fraud Conference<br />
New Partners Practice Management Course<br />
Advocacy Skills<br />
Civil Litigation Drafting Skills<br />
Sole Practitioner Conference<br />
Please visit our website for seminar details and future dates for the CPD<br />
For New Lawyers series.This series has been designed specifically for<br />
trainee solicitors and solicitors with up to five years’ PQE. Courses are<br />
free of charge, and will be held after hours.<br />
*ILG seminars are open only to In-house Lawyers Group members.<br />
Videolinks available to Aberdeen, Glasgow, Fort William, Inverness, Isle<br />
of Skye, Lerwick, Moray, Motherwell, Scottish Borders and Stornoway.<br />
Update Department,<strong>The</strong> Law Society of Scotland,<br />
26 Drumsheugh Gardens, Edinburgh EH3 7YR.<br />
Legal Post, LP1 Edinburgh 1.<br />
Web: www.lawscot.org.uk<br />
Email: update@lawscot.org.uk<br />
Telephone: 0131 226 7411 Fax: 0131 476 8118
<strong>The</strong> President’s favourite Christmas film has<br />
a message for the age of deregulation<br />
Production values dictate that a<br />
publication such as the <strong>Journal</strong> has a<br />
two week advance deadline.<br />
From time to time, however, such a<br />
gap between composition and<br />
publication has an unfortunate<br />
feature. When considering the subject<br />
matter of this month’s epistle, and<br />
casting around for inspiration,<br />
the only suggestion offered<br />
was that I “write<br />
something festive”. By<br />
the time you read this<br />
that will be entirely<br />
appropriate but, as I prepare it,<br />
on the eve of the Feast of St Andrew,<br />
Christmas still seems some distance<br />
away. Few, if any, halls are for the<br />
moment holly bough-bedecked; even<br />
where the great Venn diagram with<br />
one subset of chestnuts and a second<br />
of open fires already intersects, little<br />
roasting yet takes place; and the<br />
herald angels, far from being in full<br />
voice, haven’t even got round to<br />
booking the room for their choir<br />
practice.<br />
In an attempt to put me in the<br />
mood, Wee Mo has brushed 11<br />
months’ dust off my CD of Phil<br />
Spector’s Christmas Album and<br />
loaded it on my iPod, but even that<br />
only prompted me to do a quick<br />
internet check on whether Spector<br />
ever appealed his murder conviction<br />
(he didn’t), rather than start<br />
imagining that Santa Claus’s arrival in<br />
town appears truly imminent.<br />
So, what to write? <strong>The</strong>re are<br />
traditionally (sic) two possible<br />
themes for a piece of this nature. <strong>The</strong><br />
first involves reflecting on the year<br />
past and anticipating the year ahead,<br />
but I think I’ll leave that for January.<br />
That is surely the Scottish way.<br />
<strong>The</strong> second involves some short<br />
Christmas parable. That’s the one<br />
I’m going for.<br />
My favourite Christmas film is Frank<br />
Capra’s It’s a Wonderful Life. It is, I<br />
should observe, a wholly appropriate<br />
choice for an Officer of the Law Society<br />
of Scotland. Not only does its plot<br />
revolve around a (failed) financial<br />
compliance inspection but it features<br />
inter alia a dance floor in need of a<br />
health and safety audit, a house whose<br />
purchase would surely never have been<br />
undertaken had it required a home<br />
report, and a credit crunch which<br />
make our own problems this year<br />
appear to be a mere bagatelle. It is,<br />
obviously, a sentimental film but in<br />
many ways it is not a wholly naive one.<br />
George Bailey, the central character,<br />
does become an invaluable, loved and<br />
respected figure to the town of Bedford<br />
Falls but that achievement comes at a<br />
price. He never gets to live out his<br />
wider dreams of world travel and, at<br />
the peak of his career, he clearly enjoys<br />
no great measure of personal wealth.<br />
Within our profession, there are<br />
countless George Baileys. This year<br />
has been dominated by potential ABS<br />
changes claimed by the consumer<br />
lobby to bring greater competition to<br />
the legal services market. I make no<br />
apology for being a continued<br />
cautious supporter of these changes,<br />
but we must be careful not to throw<br />
the baby out with the bathwater. High<br />
street solicitors provide a daily and<br />
invaluable advice service, for which<br />
little by way of fees is ever charged.<br />
Clients are given one-off advice, by no<br />
means all of it strictly legal advice,<br />
which nonetheless provides<br />
reassurance or guidance of almost<br />
unquantifiable benefit to them. Local<br />
solicitors also play a key role in<br />
bringing and applying their<br />
professional skills to the assistance of<br />
numerous voluntary organisations:<br />
churches, community groups, worthy<br />
President<br />
A tale for our times<br />
www.lawscotjobs.co.uk<br />
President<br />
Ian Smart<br />
We must be<br />
careful not to<br />
throw the baby<br />
out with the<br />
bathwater. High<br />
street solicitors<br />
provide a daily<br />
and invaluable<br />
advice service,<br />
for which little<br />
by way of fees<br />
is ever charged<br />
campaigns and local charities.<br />
In Bedford Falls, George Bailey runs<br />
a savings and loan, the US equivalent<br />
of a traditional British building<br />
society. In the 1980s and 90s the<br />
establishment consensus in the USA<br />
was that such institutions were<br />
inefficient and anachronistic. <strong>The</strong>y<br />
had to be opened up to the rigour<br />
and opportunity of the market.<br />
Without the installation of<br />
appropriate safeguards, the result was<br />
disastrous. Insufficiently monitored<br />
pursuit of profit led to numerous<br />
cases of financial collapse and a not<br />
insignificant number of<br />
straightforward frauds. Millions of<br />
innocent savers were placed in danger<br />
of personal ruin. Even when federal<br />
intervention saved the day, choice, far<br />
from being widened as originally<br />
intended, was ultimately greatly<br />
curtailed. Further, the financial<br />
landscape which then remained was<br />
the one which itself collapsed so<br />
spectacularly over the last two years.<br />
<strong>The</strong> message of all this is not that<br />
change is bad. It is however that the<br />
consequences of change need to be<br />
thought through, and undesirable<br />
consequence anticipated by appropriate<br />
regulation. You have my assurance that<br />
in the ongoing ABS process, that<br />
principle will be at the very forefront of<br />
the Society’s deliberations.<br />
So that’s my festive message.<br />
All that remains is for me to wish all<br />
of you all a very merry Christmas and<br />
a happy and prosperous New Year.<br />
See you in 2010.<br />
December 09 the<strong>Journal</strong> / 7
People<br />
Onthemove<br />
ANDERSONS Solicitors LLP,<br />
Glasgow and Edinburgh, are<br />
delighted to announce a number of<br />
promotions within their Insurance<br />
Litigation and Dispute Resolution<br />
Department with effect from<br />
1 October 2009. Graham Laughton<br />
and Mary-Jo McKenna have been<br />
promoted to associates and<br />
Stephanie Wright has been<br />
promoted to senior solicitor.<br />
BRECHIN TINDAL OATTS,<br />
48 St Vincent Street, Glasgow<br />
and Hanover House, 45/51<br />
Hanover Street, Edinburgh,<br />
intimate that on 16 November<br />
2009 Jane Anne Steel was assumed<br />
as a partner of the firm.<br />
DAVIDSON CHALMERS LLP,<br />
Edinburgh, are delighted to<br />
announce the arrival of Sheila<br />
Webster, formerly of BELL & SCOTT,<br />
and Douglas Taylor, previously at<br />
DLA PIPER, to the firm as partners.<br />
Both Sheila and Douglas started<br />
with the firm on 2 November 2009.<br />
DICKSON MINTO, Edinburgh and<br />
London, intimate that with effect<br />
from 15 November 2009, Ewan<br />
Andrew John Sherriff ceased to be<br />
a partner of the firm.<br />
GRAY & KELLAS, Aberdeen and<br />
Ballater, intimate that they ceased<br />
trading on 31 October 2009. On<br />
that date the private client side of<br />
the business transferred to LAURIE<br />
Private Law consultant, Shield & Kyd<br />
8 / the<strong>Journal</strong> December 09<br />
& CO, LLP, Aberdeen, Peter Gray<br />
joined LAURIE & CO as a<br />
consultant and Caroline Davies and<br />
Fiona Barker retired from legal<br />
practice. Also on that date the legal<br />
aid side of the business and the<br />
criminal defence work transferred<br />
to GAVIN BAIN & CO, Aberdeen<br />
and Graham Morrison and John<br />
Hardie joined that firm as partners.<br />
HARPER ROBERTSON &<br />
SHANNON, 100 High Street,<br />
Annan, intimate the retiral of<br />
Michael Johnstone Shannon from<br />
the firm with effect from 30<br />
October 2009. <strong>The</strong> business will be<br />
carried on by Alan Brian Robertson<br />
and his associates.<br />
HBM SAYERS, Glasgow are<br />
delighted to announce that their<br />
associate Rachel Rough has been<br />
assumed as a partner with effect<br />
from 1 December 2009.<br />
Lili Hunter is pleased to announce the<br />
formation of her new employment<br />
law practice, LILI HUNTER LEGAL<br />
LIMITED and the appointment of<br />
Louise Spark as an associate with<br />
effect from 16 November 2009.<br />
Contact details: lili@lhlaw.co.uk and<br />
louise@lhlaw.co.uk .<br />
ALEX HUTCHEON + COMPANY,<br />
Aberdeen and Banchory, are<br />
pleased to announce the<br />
appointment of Stuart Ogilvie as a<br />
partner and Fayona Gordon as an<br />
<strong>The</strong> Edinburgh partners of Shield & Kyd who<br />
offer advice to clients in the residential,<br />
commercial and corporate sectors are delighted<br />
to announce the appointment of Euan Bell-<br />
Scott as a consultant in Private Law.<br />
Euan joins the firm after many years<br />
experience as a partner with Russel + Aitken<br />
and having held board appointments with<br />
various public bodies over the years and brings<br />
a wealth of experience with him.<br />
This appointment gives the firm of Shield & Kyd the ability to strengthen<br />
the services currently on offer to their existing clients. In addition, Shield &<br />
Kyd can now offer to other legal firms an added value service to them to<br />
assist in developing their Private Client business on an introductory<br />
commission sharing basis for Wills, Powers of Attorney, Guardianships and<br />
Executries. If this may be of interest, please contact Euan Bell-Scott on 0131<br />
228 2381 or e-mail etmbs@shieldandkyd.co.uk<br />
Stuart<br />
Ogilvie<br />
associate. Stuart and Fayona can be<br />
contacted at the firm’s main<br />
Aberdeen office at 248 Union<br />
Street, Aberdeen.<br />
Stuart Malcolm is pleased to<br />
intimate the establishment of<br />
STUART MALCOLM LLP, a niche<br />
specialist business law firm based in<br />
Oxford, England focusing on the<br />
United Kingdom’s science,<br />
technology and innovation sectors<br />
and knowledge-based and creative<br />
economies. Contact details:<br />
www.stuartmalcolmllp.com<br />
MAXWELL MACLAURIN, Glasgow<br />
and Edinburgh, intimate that with<br />
effect from 30 September 2009<br />
Linda H Hepburn retired as a<br />
partner in the firm.<br />
MELROSE & PORTEOUS, Duns<br />
and Eyemouth, and WALLACE &<br />
MENZIES, North Berwick, intimate<br />
that with effect from 30 October<br />
2009 Alan Anderson has retired as<br />
a partner of the firm.<br />
Ivan Ralph is pleased to announce<br />
that with effect from 1 November<br />
fyi<br />
Send your<br />
photographs for the<br />
people section to:<br />
peter@connect<br />
communications.co.uk<br />
Fayona<br />
Gordon<br />
Partner appointment, andersonbain & co<br />
Intimations<br />
for the people<br />
section should<br />
be sent to:<br />
Denise Robertson,<br />
Registrar’s Dept.,<br />
<strong>The</strong> Law Society<br />
of Scotland,<br />
26 Drumsheugh<br />
Gardens,<br />
Edinburgh EH3 7YR<br />
Email:<br />
deniserobertson@<br />
lawscot.org.uk<br />
2009 he has commenced practice<br />
on his own account trading as<br />
McEWAN FRASER LEGAL, 15<br />
Annandale Street, Edinburgh EH7<br />
4AW; LP – 9, Edinburgh 2 (tel 0131<br />
524 9797; fax 0131 524 9799). Ivan<br />
was formerly a partner with LESLIE<br />
DEANS & CO, Edinburgh.<br />
Raymond G Mallon and Mark C<br />
Shepherd, both formerly qualified<br />
assistants with RUSSEL & AITKEN,<br />
Falkirk, have great pleasure in<br />
intimating that they have<br />
commenced in practice together<br />
under the firm name of RMS LAW<br />
LLP at 8 Lint Riggs, Falkirk FK1 1DG;<br />
LP 8, Falkirk. <strong>The</strong> firm telephone<br />
number is 01324 228587.<br />
A & W M URQUHART, Edinburgh,<br />
intimate that Christine Alexandra<br />
Mackenzie has joined the firm<br />
as a consultant with effect from<br />
2 November 2009, and that Chris<br />
Henderson Lucas has retired as a<br />
consultant with effect from<br />
30 September 2009.<br />
andersonbain & co, Solicitors of 10 Thistle Street<br />
and 243 George Street, Aberdeen are very<br />
pleased to announce that Kevin Rattray, formerly<br />
a founding Partner of Hutcheon Rattray & Co. has<br />
joined the firm as Partner to lead their expanding<br />
Property Sales Division. Kevin has vast experience<br />
of the local property market and his appointment<br />
reinforces andersonbain’s commitment to provide<br />
a first class and proactive estate agency service<br />
for their existing and new clients and confirms<br />
their confidence in the residential property market for the future.<br />
Commenting on his appointment Kevin said “I am absolutely delighted to be<br />
bringing my client base to andersonbain and am looking forward to developing<br />
the firm’s estate agency profile and services while maintaining the extremely<br />
high standards of customer care already fundamental to the firm”.<br />
For more information please contact us on 01224 626244 or mail@andersonbain.co.uk<br />
www.journalonline.co.uk
<strong>The</strong> Cabinet Secretary for Justice<br />
welcomed Lord Gill’s report in the<br />
Scottish Parliament by describing it as<br />
“hard hitting” and “the first system<br />
wide review in modern times”. <strong>The</strong><br />
writer concurs in his appreciation of<br />
the work carried out by the review<br />
team; but questions whether two<br />
major proposals would improve<br />
access to justice.<br />
First, that “the existing shrieval<br />
complement would be reduced by<br />
around half the current number of<br />
permanent posts... there will be a<br />
substantial reduction in the number<br />
of Senators” (chapter 4, paras 213 and<br />
215). Secondly, that the privative<br />
jurisdiction of the sheriff court be<br />
increased to £150,000.<br />
<strong>The</strong> target of the report’s reforms is<br />
to “make Scotland an attractive forum<br />
for the resolution of disputes by<br />
providing high-quality judicial<br />
decisions at every level”<br />
(Introduction). <strong>The</strong>re was a desire<br />
expressed that the international<br />
reputation of Scotland’s legal system<br />
should be retained.<br />
<strong>The</strong> report makes it clear that its<br />
approach is to follow that of Dame<br />
Hazel Genn in her recent Hamlyn<br />
Lectures, “Judging Civil Justice”. What<br />
Dame Genn in fact stressed in<br />
relation to English law and courts is<br />
that “appointing judges of the highest<br />
calibre and ensuring that candidates<br />
of the highest calibre put themselves<br />
forward for consideration is critical.<br />
This is about securing the quality of<br />
the judiciary for the future” (p 146).<br />
<strong>The</strong> current level of judicial decision<br />
making certainly will not withstand the<br />
impact of a 50% reduction in the<br />
number of sheriffs and substantial<br />
reduction in senators. <strong>The</strong> Lord<br />
President, in his address at the opening<br />
of the legal year on 18 September<br />
2009, commented: “the amount of<br />
commercial business attracted to the<br />
court continues to increase – surely a<br />
sign of the quality of treatment and<br />
disposal by the dedicated judges there”.<br />
If Court of Session commercial work is<br />
a success, where does this leave<br />
personal injury work?<br />
<strong>The</strong> report makes it clear that<br />
“practitioners on both sides point to<br />
economies and efficiencies of scale<br />
that accrue through centralising all<br />
but the lowest value personal injury<br />
litigation in the Court of Session”<br />
(para 4.153). In relation to civil<br />
justice it can be seen that currently<br />
there are successes in the Court of<br />
Session. <strong>The</strong> report however identifies<br />
that “one of the key areas for reform<br />
in the civil justice system is the sheriff<br />
court” (Introduction).<br />
It proposes that the privative<br />
jurisdiction of the sheriff court would<br />
increase to £150,000. <strong>The</strong>re would be<br />
strict sanctions in expenses for noncompliance.<br />
<strong>The</strong> result of this increase would be<br />
twofold. First, a massive reduction in<br />
the Court of Session workload.<br />
Secondly there would be increased<br />
pressure on the sheriff court dealing<br />
with the additional personal injury<br />
workload, civil jury trials (in<br />
Edinburgh Sheriff Court), and<br />
ordinary and commercial cases at a<br />
higher level. One cannot identify how<br />
there will be an improvement in<br />
access to justice where the sheriff<br />
court, already identified as a major<br />
problem, is subject to an increased<br />
caseload at a higher value, requiring<br />
specialist judges and with half the<br />
existing shrieval complement.<br />
In relation to the Court of Session,<br />
the writer’s figures indicate that<br />
existing business would shrink to<br />
around a fifth of the current volume<br />
of cases. <strong>The</strong> report estimates a<br />
reduction of 64% of actions<br />
commenced in the general<br />
department. It is hard to see how any<br />
meaningful supreme court could<br />
function with the modest caseload<br />
remaining in the court.<br />
<strong>The</strong> Chapter 43 procedure will not<br />
Opinion<br />
From a personal injury practitioner’s perspective there are serious questions<br />
whether two major proposals in the Gill Review would improve access to justice<br />
A step too far?<br />
www.lawscotjobs.co.uk<br />
David<br />
Sandison<br />
David Sandison<br />
is Senior Partner,<br />
Lawford Kidd<br />
Solicitors, a personal<br />
injury specialist and a<br />
member of the Law<br />
Society of Scotland’s<br />
Civil Justice Committee<br />
be replicated in the sheriff court. It<br />
depends on a tripartite relationship<br />
involving Chapter 43, the Court of<br />
Session administration and judiciary,<br />
and the ability to involve counsel.<br />
<strong>The</strong> report confirms that litigation<br />
costs in Scotland are around half<br />
those of England. Insurers are not<br />
suffering excessive costs in Scotland.<br />
<strong>The</strong> current annual Court of Session<br />
personal injury caseload is around<br />
2,425. <strong>The</strong> bulk of these cases will be<br />
transferred to Edinburgh Sheriff<br />
Court, in which 232 PI actions were<br />
raised in 2008. Clearly the court will<br />
be unable to cope with this<br />
additional caseload and presumably<br />
these cases will be transferred back to<br />
use the unoccupied “estate” in the<br />
Court of Session (with a smaller<br />
contribution from court dues, which<br />
are less in the sheriff court). Whether<br />
this would be of any administrative<br />
cost saving benefit is doubtful, and<br />
even more questionable is whether it<br />
is an appropriate use of a court which<br />
is currently subject to redevelopment<br />
at an estimated cost of £63,000,000<br />
(freedom of information response<br />
from Scottish Court Service, 18<br />
November 2009).<br />
Are we heeding Dame Genn’s<br />
warning “<strong>The</strong> contribution of civil<br />
justice reviews to declining civil<br />
justice” (p 52)?<br />
A fuller version of this article can be found at<br />
www.journalonline.co.uk/extras<br />
December 09 the<strong>Journal</strong> / 9
Letters<br />
Facing<br />
up to ABS<br />
I wholeheartedly agree with<br />
Fiona Westwood (“Making the<br />
most of ABS”, <strong>Journal</strong>, October,<br />
38). Being commercially minded<br />
does not compromise our<br />
professionalism as lawyers – it<br />
can, in fact, enhance it.<br />
<strong>The</strong>re is simply no logic in the<br />
argument that only those with<br />
law degrees are fit and proper<br />
people to run a legal services<br />
Send your<br />
letters to:<br />
Email: journal<br />
@connect<br />
communications.<br />
co.uk<br />
or by post to:<br />
<strong>The</strong> Editor,<br />
<strong>The</strong> <strong>Journal</strong>,<br />
Studio 2001,<br />
Mile End,<br />
Paisley PA1 1JS<br />
f: 0141 561 0400<br />
10 / the<strong>Journal</strong> December 09<br />
business and all external<br />
business partners will have a<br />
detrimental affect. Our clients<br />
are the ultimate judges of our<br />
services and our ability, and<br />
there is no doubt that lawyers<br />
could learn a great deal from<br />
other professional practices and<br />
business managers who are<br />
likely to have a far more realistic<br />
view of the influence of<br />
today’s consumer.<br />
<strong>The</strong> elephant in the room,<br />
however, is how and what we<br />
put in place to regulate the new<br />
ABS and how this will impact on<br />
traditional legal practices.<br />
I am writing in reply to the letters<br />
published in the two preceding issues<br />
from Jon Kiddie and Frank Irvine. <strong>The</strong><br />
writers indicated their belief that<br />
there was a significant upward trend<br />
in abatement of civil advice and<br />
assistance accounts.<br />
<strong>The</strong> Board’s analysis of abatements<br />
suggests that this is not the case. Over<br />
the last five years, the value of civil<br />
advice and assistance abatements has<br />
remained close to the average of<br />
around 3% of the total of lodged<br />
accounts. In 2008-09, almost 78% of<br />
firms experienced abatements less<br />
than that average; of the remainder,<br />
almost two thirds had abatements<br />
totalling less than £1,000 for the year.<br />
Granted, this may not be the<br />
case for your two correspondents;<br />
however, it does appear to be the<br />
case more widely.<br />
<strong>The</strong>re are areas of law where some<br />
firms may be aware of increased levels<br />
of scrutiny of their accounts. We<br />
regularly carry out trends analysis to<br />
identify significant changes in<br />
expenditure, reviewing the average<br />
cost of cases and comparing<br />
individual firms’ costs. As a result, we<br />
identify areas where the risks might<br />
be higher. Of late, analysis has<br />
identified that this would apply, for<br />
example, in mental health cases.<br />
In his letter, Mr Kiddie pointed to<br />
two particular issues. <strong>The</strong> first<br />
concerned confirmatory letters, a<br />
First, we have to set the bar<br />
high. It is in everyone’s interests<br />
to create a regulatory framework<br />
that protects the traditional<br />
ethos and values of the legal<br />
profession whilst embracing<br />
21st century business practices.<br />
When regulating on matters<br />
such as competency and quality<br />
controls we must also satisfy the<br />
highest possible standards of<br />
ethics and integrity.<br />
Secondly, we have to be<br />
prepared to face the fact that<br />
what is good for the corporate<br />
entity, i.e. the ABS, is also good<br />
for every law firm. High standards<br />
A&A abatements:<br />
Board’s response<br />
point also raised by Mr Irvine. <strong>The</strong>re<br />
may be occasions where, for a variety<br />
of reasons, you consider a client<br />
cannot follow or may have difficulty<br />
in understanding advice provided<br />
during a meeting. If so, it may be<br />
appropriate to give the advice in a<br />
letter, following the meeting. Whilst,<br />
in principle, such a letter may form a<br />
reasonable charge, you should give<br />
the advice briefly, in plain English<br />
and focus it on the specific, material<br />
issues. We do not think it necessary<br />
(or reasonable) to send the client a<br />
lengthy letter repeating much of the<br />
advice given at a meeting, especially<br />
where it may not be readily<br />
understood. Where lengthy letters<br />
are claimed, we suggest that copies<br />
of the letters are sent in with the<br />
account so that we can make a more<br />
informed assessment of the<br />
appropriateness of the charge.<br />
Mr Kiddie’s second concern related<br />
to account entries. Following<br />
publication of his letter a colleague<br />
and I met with Mr Kiddie and<br />
through constructive discussion, it<br />
seemed we were able to resolve many<br />
of Mr Kiddie’s concerns over<br />
accounting entries.<br />
We very much hope that the<br />
Board’s project to move accounts<br />
online will help to reduce the need<br />
for abatements: the built-in fee rates<br />
make it impossible to claim on the<br />
wrong table of fees and, in addition,<br />
of practice are good for the<br />
customer, good for the rule of<br />
law and good for ourselves, and<br />
therefore should be applied to all<br />
forms of legal firm.<br />
Isn’t it interesting that Fiona’s<br />
perception of lawyers is that we<br />
“add time delays and costs”?<br />
She also comments that we are<br />
not seen as leaders. As Scots we<br />
are all familiar with the phrase<br />
“to see ourselves as others see<br />
us”. I can think of no better<br />
time than now to take heed of<br />
Robert Burns’ great saying.<br />
Alistair Morris, CEO, Pagan Osborne<br />
the process will improve both the<br />
speed and quality of<br />
communications on disputed<br />
accounting entries. <strong>Online</strong> account<br />
submission is already available for<br />
advice and assistance and ABWOR,<br />
and has the added cash flow benefit<br />
of payment of undisputed sums on<br />
account. Along with improvements<br />
to the existing online accounts<br />
package, we will shortly introduce<br />
online accounts for criminal and civil<br />
accounts. I am also pleased to report<br />
that we will shortly publish<br />
comprehensive accounts assessment<br />
guidance in the Legal Aid Handbook,<br />
so that legal aid practitioners and law<br />
accountants will have at their<br />
disposal, comprehensive and up-todate<br />
guidance on the preparation of<br />
legal assistance accounts.<br />
For practitioners who do have<br />
issues with abatements, the Board<br />
always welcomes engagement; and<br />
would be particularly open to<br />
addressing any apparent trend<br />
within a firm’s accounts. We<br />
regularly engage with local faculties,<br />
firms and law accountants to assist<br />
them with any assessment issues. I<br />
am happy to affirm that such an<br />
invitation remains open; where we<br />
have done this, the feedback has<br />
been positive. <strong>The</strong> Board is currently<br />
piloting a system of supplier<br />
support, where it proactively<br />
provides information to firms on<br />
their applications and accounts,<br />
seeking to work together, in our<br />
mutual interest, to maximise the<br />
likelihood of an application being<br />
successful or an account being paid<br />
first time.<br />
Andrew Menzies, Director of Corporate<br />
Services and Accounts, Scottish Legal Aid Board<br />
www.journalonline.co.uk
Legal aid: what achievement?<br />
As we move into the festive<br />
season, the phrase “turkeys<br />
voting for Christmas” came to<br />
mind when reading Oliver<br />
Adair’s comments on the<br />
Scottish Legal Aid Board’s annual<br />
report (<strong>Journal</strong>, October, 34).<br />
Mr Adair commented:<br />
“Solicitors played a vital role in<br />
achieving these savings [to the<br />
legal aid budget], while also<br />
providing legal services to the<br />
most needy in society.” Is the<br />
Society therefore to be<br />
congratulated for acceding, on<br />
our behalf but without our<br />
consent, to a 6% cut in the<br />
summary criminal legal aid<br />
budget? After 10 years without<br />
an increase in fees payable?<br />
At the Society’s Special<br />
General Meeting in August 2008<br />
the proposed cuts were<br />
unanimously condemned by the<br />
profession as “unacceptable”.<br />
<strong>The</strong> Summary Justice Reform<br />
review process, championed by<br />
the Society at that meeting, has<br />
failed to address the cuts in any<br />
way, let alone remedy their effect<br />
on criminal practitioners. That<br />
process has failed to achieve<br />
anything other than a dialogue<br />
with the Cabinet Secretary for<br />
Justice: something for which, it<br />
appears, we should be eternally<br />
grateful. My prediction, made at<br />
the SGM, that we would never<br />
see that money again has sadly<br />
proved to be the case.<br />
What Mr Adair may wish to<br />
focus on is the disproportionate<br />
rise in SLAB’s administration<br />
when compared to payments to<br />
solicitors. Over the last five years<br />
the number of legal aid<br />
applications has decreased by<br />
32% but administration costs<br />
have increased by 36%. Such<br />
costs are now over 9% of the<br />
www.lawscotjobs.co.uk<br />
overall legal aid budget,<br />
compared to 5.8% five years<br />
ago. Actual payments to<br />
solicitors have remained static<br />
over that period. Money must be<br />
taken out of administration and<br />
put back into payments to those<br />
appearing at court, to prevent<br />
this desperate situation<br />
deteriorating further.<br />
Nor can it be said that the<br />
PDSO has played a “vital role in<br />
achieving savings”. Its costs have<br />
risen by 11%, despite an 11%<br />
fall in its number of cases.<br />
More than just being<br />
“excellent value to the taxpayer”<br />
(as Mr Adair puts it), legal aid<br />
practitioners are seriously<br />
undervalued for the work they<br />
undertake. <strong>The</strong>re is an increasing<br />
shortage of new solicitors. Access<br />
to justice is primarily a funding<br />
issue. Mr Adair should perhaps<br />
spend 2010 (which will be the<br />
18th anniversary of £42.20 per<br />
hour) trying to achieve higher<br />
payments for practitioners, rather<br />
than further savings.<br />
David O’Hagan, President, Glasgow<br />
Bar Association<br />
<strong>The</strong> review group replies<br />
David O’Hagan has chosen to<br />
make a personal attack on Oliver<br />
Adair, the convener of the Legal<br />
Aid Committee and review<br />
group. It compares poorly with<br />
Mr Adair’s measured comments<br />
on legal aid costs in the October<br />
<strong>Journal</strong>. <strong>The</strong> profession has come<br />
to a view, confirmed at the SGM,<br />
that it is in our best interests to<br />
engage constructively with the<br />
Scottish Government and SLAB,<br />
who control our funding and<br />
financial regulation.<br />
No rational alternative has<br />
been proposed or demonstrated.<br />
<strong>The</strong> “industrial action” only<br />
succeeded in giving credibility to<br />
the PDSO. <strong>The</strong> failed judicial<br />
review of the duty scheme and<br />
the requisitioning of the SGM<br />
proved equally ineffective. It is to<br />
be hoped this course of action<br />
will end with the latest inaccurate<br />
criticism by Mr O’Hagan.<br />
We need look no further than<br />
the original consultation<br />
document published by SLAB in<br />
October 2007, and the<br />
negotiated outcome for criminal<br />
legal assistance introduced in<br />
July 2008, to appreciate the<br />
value of engaging effectively<br />
with Government. <strong>The</strong> difference<br />
between the proposals and the<br />
eventual result was due largely<br />
to the experience and often<br />
unseen hard work of Oliver<br />
Adair. All of us who have worked<br />
with him admire his selfless<br />
dedication to a tough task.<br />
Oliver speaks for all of us in the<br />
review group. If colleagues have<br />
anything to say about the review<br />
process or continuing problems<br />
or queries, please contact us<br />
directly as many have, including<br />
some from Glasgow. <strong>The</strong>ir<br />
contributions are welcome and<br />
inform and improve what we do.<br />
For the sake of completeness and<br />
fairness we should point out that<br />
David O’Hagan’s comments on<br />
the solemn regulations were<br />
incorporated into the<br />
representations made to the<br />
Government and SLAB. Now is<br />
the time for our GBA colleagues<br />
to join us in a more mature and<br />
constructive approach. Those of<br />
us engaged in promoting the<br />
profession’s interests would<br />
welcome their involvement<br />
and assistance.<br />
No one should confuse our<br />
engagement in this process with<br />
an endorsement of all aspects of<br />
summary justice reform, and<br />
especially not of cuts in legal aid<br />
spending. <strong>The</strong> Scottish Parliament<br />
decided to cut legal aid spending.<br />
Our job is to promote our crucial<br />
role in the system and try to<br />
achieve the best outcome for the<br />
profession and for our clients in<br />
the difficult economic<br />
circumstances we face.<br />
Lawyers – not only members<br />
of the GBA – are no less cynical<br />
today than they have ever been,<br />
and, to the credit of the Cabinet<br />
Secretary for Justice, the review<br />
process was established to<br />
consider actual business volumes<br />
and legal aid costs against<br />
projections. <strong>The</strong> question of<br />
recalibrating the fee structure is<br />
a key issue for this process. Legal<br />
aid administration costs continue<br />
to feature in these discussions.<br />
Mr O’Hagan appears to<br />
suggest that Mr Adair<br />
commended the role of the<br />
PDSO in “achieving savings”. <strong>The</strong><br />
Society and Mr Adair agree that<br />
criminal legal defence is best and<br />
most cost effectively provided by<br />
solicitors in private practice.<br />
Oliver Adair and the Society’s<br />
review group will continue to<br />
press for a legal aid system<br />
which properly remunerates<br />
solicitors for representing and<br />
securing justice for their clients,<br />
often the most disadvantaged in<br />
our society. We welcome<br />
constructive involvement and<br />
input from all practitioners.<br />
Ken Dalling, John Scott, Ian Bryce and<br />
Vincent McGovern, members of the<br />
review group.<br />
kd@dallings.co.uk;<br />
johndscott@talk21.com;<br />
ianbryce.ccl@googlemail.com;<br />
vgmcgovern@msn.com<br />
December 09 the<strong>Journal</strong> / 11
Feature Home reports<br />
One year after their introduction, have solicitors been won over at all to<br />
the system of home reports? Comments collected by the Society and the<br />
<strong>Journal</strong> between them suggest that the scheme’s stated objectives are<br />
not being fully realised, as Peter Nicholson reports<br />
Reportcard<br />
“Home reports have certainly saved the<br />
surveying profession from penury. I think<br />
the jury is still out on whether they are<br />
good for the public.” (Janette Wilson,<br />
convener, Conveyancing Committee,<br />
the Law Society of Scotland)<br />
Ayear into home reports,<br />
while most solicitors agree<br />
that the state of the<br />
property market and the<br />
wider economy is the dominant<br />
concern, feelings about the reports are<br />
still running strongly.<br />
Some have been won over,<br />
believing they add a degree of<br />
transparency and help deals go<br />
through more quickly. Feedback<br />
however indicates a majority view that<br />
they act as a drag on the market by<br />
deterring people thinking of<br />
testing the level of interest in their<br />
house, are distrusted by many<br />
clients, and fall short of achieving<br />
their stated objectives.<br />
It is worth recalling at this point<br />
the principal justifications for<br />
bringing in the home report. First and<br />
foremost was the desire to see buyers<br />
receive meaningful information<br />
fyi<br />
An ESPC member survey<br />
found 80% experiencing<br />
some lender problems,<br />
the mode answer<br />
being “25% of<br />
the time”<br />
about the condition of the property<br />
for which they were offering; and it<br />
was a cornerstone of this exercise that<br />
the report should be independently<br />
prepared by the surveyor, though<br />
commissioned by the seller, and<br />
made available to all prospective<br />
purchasers. Further benefits<br />
anticipated were the avoidance of<br />
artificially low upset prices, and an<br />
end to multiple surveys on the same<br />
property by different offerers. So how<br />
does experience to date measure up?<br />
Lenders buying in?<br />
<strong>The</strong> first and perhaps most important<br />
point is that the answer depends very<br />
much on which solicitor you talk to.<br />
<strong>The</strong> differences in accounts of how<br />
the system operates are striking.<br />
Take, for example, one of the<br />
principal areas of complaint, the<br />
continuing reluctance of some lenders<br />
to accept the reports (RBS was named<br />
by more than one respondent).<br />
Mike Sinclair of Aberdein Considine<br />
in Aberdeen, and Ken Thomson of<br />
Thorntons in Dundee, both report<br />
only limited problems with lenders,<br />
though Thomson adds that this<br />
cannot yet be taken for granted.<br />
But in Perth, Graham Gibson of<br />
Kirklands claims he has “yet to come<br />
across a case where the lender was<br />
willing to accept the home report”.<br />
Often it is already out of date for<br />
lenders’ purposes (unusually, he cites a<br />
six week cutoff point compared with<br />
the general experience of 12 weeks’<br />
currency); in any event, he adds, “my<br />
experience has been that when a<br />
purchaser has been successful they want<br />
to get a separate valuation for peace of<br />
mind/mortgage valuation purposes”.<br />
An ESPC survey of member firms<br />
found 80% experiencing some lender<br />
problems, the mode answer being<br />
“25% of the time”.<br />
Janette Wilson thinks lender issues<br />
are currently “the main problem”, with<br />
some regularly demanding either an<br />
updated or an independent valuation<br />
because of the age of the report, the<br />
surveyor not being on their panel, or a<br />
high loan-to-value ratio.<br />
Kennedy Foster of the Council of<br />
Mortgage Lenders in Scotland claims<br />
there has been no major change so far<br />
as lenders are concerned: they will<br />
generally accept a valuation provided<br />
12 / the<strong>Journal</strong> December 09 www.journalonline.co.uk
the surveyor is on their panel and it is<br />
not more than three months old.<br />
“<strong>The</strong>re may be exceptions if a<br />
property or borrower is perceived to<br />
be higher risk and lenders always<br />
reserve the right to commission an<br />
independent valuation… <strong>The</strong>se are<br />
decisions for individual lenders”.<br />
He adds however that throughout<br />
the development of the home report,<br />
the CML indicated that it could be an<br />
issue that when the report was<br />
commissioned, the identity of the<br />
purchaser and lender would not be<br />
known. So even if, as he points out,<br />
most of the major surveyors tend to<br />
be on lender panels, his comment of<br />
“no major change” has to be qualified<br />
in that important respect.<br />
Worth a second look<br />
It follows that many purchasers still<br />
end up funding at least a mortgage<br />
valuation, and not only for that reason.<br />
“Sellers are reluctant to pay for refreshed<br />
reports”, reports Graeme McCormick of<br />
Conveyancing Direct, Glasgow. “<strong>The</strong><br />
cost normally falls on the purchaser,<br />
depending who blinks first.” Mark<br />
Hordern at GSPC reports some<br />
exceptions: “Some sellers will cover the<br />
cost of a refreshed report in order to<br />
secure a sale, and some buyers insist<br />
that they do so as part of an offer.”<br />
What about purchasers choosing to<br />
instruct their own survey in any<br />
event? This attracted the whole<br />
spectrum of responses. Despite<br />
Gibson’s experience, Thomson and<br />
Hordern say this is rare; and in<br />
Edinburgh, Chris Hardie of Lindsays<br />
says most purchasers accept the<br />
report. Even so, 78% of ESPC<br />
members say that a second survey is<br />
instructed “occasionally, i.e. 10-39%<br />
of the time”, and half of these are<br />
because the purchaser wants an<br />
independent survey. Paul Carnan in<br />
Glasgow reckons there is a further<br />
survey in a third of cases, while<br />
McCormick puts the figure at 50%,<br />
when lender requirements and<br />
purchaser lack of confidence in the<br />
seller’s report are taken together.<br />
Another development can only<br />
increase the chances that a purchaser<br />
will wish to have their own valuation.<br />
While there appear to be few cases of<br />
sellers going to the length of<br />
instructing more than one home<br />
report and selecting the most<br />
favourable, various solicitors report<br />
the emergence of the “beauty parade”<br />
– requesting a desktop valuation from<br />
say three firms of surveyors and then<br />
instructing the home report from the<br />
one providing the highest figure. Ron<br />
Hastings of Kelso indeed calls for the<br />
www.lawscotjobs.co.uk<br />
practice to be stamped out, by<br />
requiring disclosure of other<br />
valuations obtained within the<br />
previous three months.<br />
<strong>The</strong> suggestion may not be practical.<br />
Some, like McCormick, do not get<br />
involved in arranging home reports,<br />
and would have to rely on the client’s<br />
honest disclosure. But if the tactic is<br />
widespread, it could explain why<br />
McCormick has yet to see a valuation<br />
obtained by a purchaser exceed the<br />
home report valuation, whereas in<br />
several cases it has come in at less. And<br />
with an Edinburgh solicitor (otherwise<br />
in favour of the reports) reporting a<br />
potential difference of up to 25%<br />
between one valuation and another,<br />
and Janette Wilson having seen a case<br />
where a second surveyor produced a<br />
valuation £40,000 higher than a first,<br />
in a falling market, the seller appears<br />
to have little to lose.<br />
Paul Carnan believes it is not always<br />
borne in mind, as he says it should be,<br />
that the home report valuation is still<br />
only one person’s opinion. Referring to<br />
surveyors being selected for their<br />
favourable tendencies, or being<br />
persuaded to revise valuations upwards,<br />
he comments: “I see nothing wrong in<br />
this provided prospective purchasers are<br />
aware that the valuation in the home<br />
report is merely a valuation, provided<br />
by the seller’s choice of surveyor: it is<br />
not ‘the’ valuation. Other surveyors may<br />
have a different opinion.”<br />
All the same, it must represent a<br />
serious undermining of the original<br />
concept of an independently<br />
prepared report. Lindsays’ Hardie says<br />
his firm discourages clients from<br />
instructing more than one report, as<br />
“To do so on a regular basis would<br />
undermine the credibility of our<br />
selling service and the fact that the<br />
home report is entirely objective and<br />
therefore more reliable from the<br />
point of view of the purchaser and his<br />
lender.” One might think, however,<br />
that evidence that different surveyors<br />
can still come up with significantly<br />
different valuations of the same<br />
property will in itself work against<br />
such acceptance.<br />
Douglas Crombie of Craigens,<br />
Aberdeen does report the sort of<br />
experience the promoters must have<br />
been hoping for: “<strong>The</strong> immediate<br />
availability of information on the<br />
condition of a property, essential and<br />
non-essential repairs, and most<br />
importantly a valuation (which<br />
incidentally the majority of buyers and<br />
indeed lenders have accepted without<br />
question), coupled with a realistic<br />
asking price, has allowed buyers (1) to<br />
very quickly obtain mortgage lending<br />
approval, and (2) thereafter to offer<br />
with confidence at or around the<br />
asking price/valuation figure.”<br />
Market factors<br />
On the subject of price, GSPC’s<br />
Hordern does not detect any consistent<br />
trend, but observes that it is already<br />
clear that home reports are not<br />
preventing buyers from offering above<br />
valuation. Mike Sinclair in Aberdeen<br />
reports many properties now achieving<br />
more, some up to 10%.<br />
To be fair, it has never been claimed<br />
that the system would itself lead to<br />
fixed prices, and it is clear that local<br />
market conditions and/or demand<br />
for the particular property continue to<br />
have the dominant influence, even if<br />
the home report may provide a<br />
weighting of its own.<br />
Hordern continues: “On the other<br />
hand, we see properties… selling for<br />
less than the home report valuation.<br />
In some cases, sellers are effectively<br />
suggesting that their home represents<br />
great value by showing that their<br />
current asking price is lower than the<br />
home report valuation.”<br />
Upset prices reflect this benchmark<br />
role. Hordern adds: “Home reports<br />
have certainly encouraged most<br />
selling agents to advertise homes for<br />
sale at or close to their home report<br />
valuation. This is particularly true in<br />
areas where prices are under pressure<br />
and sellers are using the home report<br />
valuation to justify and support their<br />
asking price. However, there have<br />
been signs recently that some estate<br />
agents are returning to the policy of<br />
advertising homes for sale for less<br />
than the home report valuation.”<br />
Hardie agrees that home reports have<br />
at least eliminated the artificially low<br />
upset price – and can also put a damper<br />
on inflated expectations as to price.<br />
In Ken Thomson’s experience the<br />
valuation has been acting as a guide<br />
price: a fixed price at the valuation<br />
figure “is often treated almost as an<br />
invitation to offer below that price….<br />
Continued overleaf ><br />
A fixed price at the valuation figure<br />
“is often treated almost as an<br />
invitation to offer below that price”<br />
December 09 the<strong>Journal</strong> / 13
Feature Home reports<br />
Continued from page 13 ><br />
In competitive situations, people may<br />
still pay a premium to secure a property”.<br />
Janette Wilson has recent<br />
experience of sales “where in a<br />
competitive situation with a closing<br />
date a price well in excess of the home<br />
report valuation has been achieved”;<br />
and to Graeme McCormick “It hasn’t<br />
made a blind bit of difference. Where<br />
there are closing dates or competition,<br />
prices achieved are often 5% to 10%<br />
over valuation. If there is no<br />
competition it just depends on<br />
negotiation as it always has.”<br />
Relevant also to impact on the<br />
market is the complaint by several<br />
solicitors that home reports have a<br />
depressing effect because, as was<br />
predicted, clients don’t want to go to<br />
the expense of obtaining a report<br />
just to test the market. <strong>The</strong> delay in<br />
being able to market a property also<br />
causes frustrations – two to four<br />
weeks for some.<br />
A cost to absorb<br />
Nearly everyone agrees that home<br />
reports mean more work (the ESPC<br />
finding is 89%, though Hardie is one<br />
exception). <strong>The</strong> sheer length of some<br />
reports is astonishing. An Edinburgh<br />
solicitor records one of 41 pages –<br />
counterproductive, as the clients<br />
didn’t want to wade through it all.<br />
Carnan has seen one of over 70.<br />
“Clients are increasingly turning to<br />
their solicitor for interpretation and<br />
advice”, he adds. “Standing the time<br />
involved to read and digest the<br />
content of such reports and then to<br />
give advice thereon, I do charge.”<br />
In that he is in the minority, as most<br />
respondents say the current highly<br />
competitive market means they are<br />
unable to pass on the cost of the work.<br />
For Graeme McCormick the extra<br />
is in renegotiating the price when<br />
purchasers’ valuations come in at<br />
under the home report figure. “We just<br />
absorb the cost and the vituperation.”<br />
Janette Wilson claims that a web-based<br />
system such as the Society’s service<br />
provided by Openhouse should<br />
reduce the extra work: “you don’t have<br />
to assemble all the bits yourself”.<br />
Gibson, however, says that by<br />
referring the client direct to the<br />
surveyor, “the client gets a quicker<br />
service and we do not get involved in<br />
doing (unbillable) work”.<br />
Scope for improvement?<br />
What about the main point, then, of<br />
providing better information? This, it<br />
appears, is bound up with the level of<br />
trust in what is offered. In Carnan’s<br />
<strong>The</strong> system in practice<br />
John Scott of the Society’s <strong>Professional</strong><br />
Practice Department reports:<br />
“Your feedback so far indicates that<br />
some favour the new system, finding<br />
home reports an effective marketing<br />
tool for sellers and a source of useful<br />
information for prospective purchasers.<br />
However many remain highly sceptical<br />
of the benefits. Several aspects are<br />
causing particular concern:<br />
Discouragement of potential sellers<br />
from entering the market, due to the<br />
cost of obtaining the report.<br />
Delays in initial marketing of<br />
properties, caused by the requirement<br />
to obtain the report first.<br />
words, “the home report is not<br />
meeting this need effectively because<br />
of the disconnect between the time of<br />
valuation and the time of offer, and<br />
because it is perceived as being the<br />
seller’s report and, consequently, not<br />
to be trusted”.<br />
<strong>The</strong> thrust of other responses is that<br />
if clients are being given more<br />
information, whether they appreciate<br />
it depends on their willingness to<br />
accept the home report at face value;<br />
and while this applies in many cases,<br />
in a considerable though difficult to<br />
determine percentage it does not.<br />
<strong>The</strong> question then is whether the<br />
level of acceptance will rise or fall due<br />
to the external influences at work.<br />
What happens next? <strong>The</strong> Scottish<br />
Government’s promised review will<br />
take place in three stages. First, a<br />
scoping exercise is underway to identify<br />
relevant data streams, including<br />
quantitative data from Solicitors<br />
Property Centres and Registers of<br />
Scotland. <strong>The</strong> Society has pressed for a<br />
focus group of solicitor estate agents as<br />
a useful source of qualitative data.<br />
An interim review will then assess<br />
any refinements required to improve<br />
the way the reports work – a fine<br />
tuning exercise to be based on the<br />
first year’s data, and due to complete<br />
by next summer (some delay is<br />
predicted). <strong>The</strong> Society failed in a bid<br />
to include consideration of removing<br />
the compulsion element, or<br />
abandonment of the whole scheme;<br />
this would only destabilise the<br />
market, said the Government.<br />
<strong>The</strong> full evaluation of whether<br />
home reports have achieved the<br />
Government’s policy objectives will<br />
not take place until five years have<br />
elapsed. “It remains to be seen how<br />
the impact of home reports on the<br />
condition of housing will be<br />
measured”, says John Scott, secretary<br />
Circumvention of the Act, e.g. where<br />
selling agents postpone the<br />
commissioning of a report until a<br />
purchaser is lined up.<br />
“Beauty parades”, where a selection<br />
of desktop valuations is obtained and<br />
the single survey is then ordered from<br />
the surveyor providing the highest.<br />
Delays in concluding missives,<br />
while purchasers’ lenders approve the<br />
single survey.<br />
Rejection of the single survey by<br />
lenders, particularly when provided by<br />
a firm of surveyors not on their panel,<br />
and insistence on a separate mortgage<br />
valuation at the purchaser’s expense –<br />
multiple surveys?!.<br />
“I raised all these points at both the<br />
stakeholders’ meeting and the meeting<br />
with DTZ [who are carrying out the<br />
initial stage of the Government review].<br />
It is clear that the Government is<br />
sensitive to at least some of them. It has<br />
been encouraging Trading Standards to<br />
take a more proactive approach to<br />
enforcement of the legislation, and has<br />
contacted CML on the lender issues.<br />
“We shall continue to represent<br />
your views on home reports to the<br />
Government at every available<br />
opportunity. In addition we may carry out<br />
our own research to gauge their effect.”<br />
to the Society’s Conveyancing<br />
Committee, who has been heavily<br />
involved in the monitoring work.<br />
To Graeme McCormick it is “one of<br />
the biggest flaws in the scheme” that no<br />
national register of home reports has<br />
been created: this could have provided a<br />
historic condition report on a property,<br />
and valuable information on the<br />
quality of the housing stock. Indeed, as<br />
things stand, one wonders how any<br />
change in the level of information<br />
available to purchasers, particularly as<br />
to whether defects have been revealed<br />
that otherwise would only have come<br />
to light after purchase, is to be assessed.<br />
Scott adds: “<strong>The</strong> political reality is<br />
that home reports will be with us for<br />
the foreseeable future, well beyond<br />
the Holyrood elections in 2011,<br />
unless there is a groundswell of<br />
public opinion against them. If you<br />
have any clients who are seriously<br />
unhappy about the new system I<br />
suggest that you ask them to direct<br />
their complaint to their local MSP!”<br />
What can be said with some<br />
confidence, on the feedback reported<br />
here, is that theory and practice in<br />
relation to home reports are currently<br />
some distance apart, and it remains to<br />
be seen whether effective measures<br />
can be devised to narrow the gap.<br />
14 / the<strong>Journal</strong> December 09 www.journalonline.co.uk
Registers of Scotland’s biggest ever showcase event<br />
will officially launch both ARTL and the upgraded<br />
Registers Direct service this month<br />
On 15 December, Cabinet<br />
Secretary for Finance and<br />
Sustainable Growth, John Swinney<br />
will officially launch ARTL,<br />
Registers of Scotland’s (RoS) online<br />
system for the automated<br />
registration of title to land, and our<br />
upgraded information service,<br />
Registers Direct (RD). <strong>The</strong> launch,<br />
the biggest showcase event that<br />
RoS has ever hosted, is being held<br />
in Edinburgh’s Dynamic Earth, a<br />
setting befitting the significance of<br />
ARTL and RD to the Scottish<br />
economy.<br />
Commenting on the event,<br />
Kenny Crawford, RoS’s Head of<br />
Business Development and<br />
Customer Services, said: “It will<br />
focus particularly on ARTL and<br />
RD. We will be using real<br />
examples, filmed case studies<br />
and independent research to<br />
demonstrate our products. It is<br />
also an opportunity to inform<br />
you of our future plans and<br />
innovations.”<br />
RD is, of course, not new. It was<br />
first launched back in 2000 when<br />
its customer base was dominated<br />
by private search companies and<br />
the legal profession. Since then,<br />
many public and private bodies<br />
have signed up as customers,<br />
recognising the economic benefits<br />
of the information we hold and<br />
the ready access to that<br />
information that RD can deliver<br />
for them. In a recent analysis of<br />
RoS’s economic value to the<br />
Scottish economy, BiGGAR<br />
Economics estimated that using<br />
RD helped local authorities<br />
collect more than £90 million<br />
extra council tax. Without the<br />
electronic delivery of the<br />
information held on our public<br />
registers, such savings would not<br />
be possible.<br />
We have recently completed<br />
the introduction of the new<br />
upgraded RD to our customers.<br />
<strong>The</strong> main change is a new<br />
architecture that provides a more<br />
robust platform delivering<br />
greater certainty of service<br />
availability. We will continue to<br />
work closely with our customers<br />
to ensure that the product meets<br />
their changing needs.<br />
In contrast to RD, ARTL is a<br />
relatively new innovation, first<br />
introduced in 2007. Since then<br />
we have successfully registered<br />
over 21,000 paperless<br />
transactions on the Land<br />
Register. Initially limited to the<br />
online registration of standard<br />
securities and discharges, last<br />
year we introduced functionality<br />
to enable the online registration<br />
of dispositions and the<br />
collection of any associated<br />
stamp duty land tax as well as a<br />
range of local authority grants<br />
and charges. In financial terms,<br />
we estimate that the value of<br />
standard securities registered<br />
using ARTL already totals more<br />
than £1.1 billion.<br />
We were deliberately cautious<br />
in rolling out ARTL to customers,<br />
as we wanted to make sure that<br />
the system positively supported<br />
the business process that takes<br />
place in the conveyancer’s office<br />
before engaging in a major<br />
publicity campaign aimed at<br />
both the public and the<br />
profession. Since the rollout<br />
began, we have made a number<br />
of functional and technical<br />
enhancements to the system<br />
based on the feedback that we<br />
receive from users. Customers<br />
tell us that ARTL now adds real<br />
value to the conveyancing and<br />
registration process.<br />
<strong>The</strong>re are now over 270 solicitor<br />
firms who have the capability to<br />
use ARTL and they are supported<br />
by 17 lending institutions who<br />
have made their standard<br />
securities available for use.<br />
In these challenging economic<br />
times, ARTL provides us all with<br />
opportunities for administrative<br />
and financial efficiencies, and<br />
our website (ros.gov.uk) details<br />
these. It also includes<br />
testimonials from practitioners.<br />
However, ARTL was introduced –<br />
ultimately – for the benefit of<br />
your client, be that the person<br />
buying a house or the lender<br />
who is advancing loan funds.<br />
Registration fees for ARTL are<br />
significantly less than for<br />
traditional, paper-based<br />
applications and the registration<br />
process for ARTL transactions is,<br />
in the main, completed on the<br />
day the application is processed.<br />
Looking forward to the official<br />
launch John King, RoS’s<br />
Registration Director, said: “If<br />
you use ARTL your client will<br />
enjoy financial savings, a faster<br />
service and greater security. A<br />
major part of our future publicity<br />
will be aimed at informing the<br />
conveyancing public about<br />
ARTL. I would urge all<br />
conveyancing firms to commit to<br />
using the system so that your<br />
clients can take advantage of the<br />
financial and other savings that<br />
ARTL can offer.”<br />
Professor Stewart Brymer, the<br />
convener of the Law Society’s<br />
ARTL Implementation Group<br />
comments: “<strong>The</strong> new upgraded<br />
Registers Direct is a welcome<br />
addition for conveyancers and the<br />
wider public. <strong>The</strong> real benefits will<br />
ARTL UPDATE<br />
As at 20 November 2009<br />
Registers<br />
Down the slipway<br />
Above: Cabinet Secretary for Finance<br />
and Sustainable Growth, John Swinney<br />
MSP will attend the official launch of<br />
ARTL and RD<br />
be gained from ARTL however. In<br />
ARTL, Scotland has one of the<br />
leading automated registration<br />
systems in the world. RoS are to be<br />
congratulated on their vision to<br />
invest in ARTL and it is hoped that<br />
a fully electronic conveyancing<br />
process will be in place sooner<br />
rather than later once e-missives<br />
become a reality.”<br />
To find out more about ARTL and<br />
RD, please contact our eServices team<br />
by tel: 0845 607 0160 or email:<br />
eservices@ros.gov.uk or go to ros.gov.uk .<br />
21,522 ARTL transactions have taken place.<br />
Live on ARTL<br />
277 solicitors’ firms.<br />
17 lenders.<br />
11 local authorities.<br />
29 full sign-up meetings scheduled over the next four weeks.<br />
For up-to-date information and a full list of participating practices and<br />
companies go to: ros.gov.uk/artl<br />
December 09 the<strong>Journal</strong> / 15
Feature Repossessions<br />
<strong>The</strong> situation of home owners faced with<br />
repossession proceedings has become a political<br />
issue. Mark Higgins assesses the likely impact for<br />
creditors and debtors of the Government’s<br />
response, the Home Owner and Debtor<br />
Protection (Scotland) Bill<br />
Homing<br />
instinct<br />
You don’t have to be too<br />
old to remember the<br />
introduction of the<br />
Mortgage Rights (Scotland)<br />
Act 2001, heralded by many –<br />
including myself – as a landscapechanging<br />
piece of legislation,<br />
overturning the almost invincible<br />
position of the creditor in<br />
repossession actions. <strong>The</strong> 2001 Act<br />
did have some effect in altering the<br />
balance of power between lenders<br />
and their customers but, while no<br />
precise figures are available, it<br />
transpired that no more than 10% of<br />
repossession actions between 2002<br />
and 2009 were the subject of a<br />
mortgage rights application.<br />
In many cases, home owners were<br />
either unaware of the opportunity to<br />
make such an application or ignored<br />
their opportunity. In other cases, the<br />
formality and complexity of the<br />
process may have deterred<br />
applications under the 2001 Act.<br />
<strong>The</strong> effectiveness of the Act was not<br />
a matter of political concern during<br />
the relatively benign economic<br />
conditions pertaining in the early and<br />
middle years of this decade. <strong>The</strong><br />
current economic crisis, however,<br />
radically changed the political<br />
climate, and fuel was added to the fire<br />
by the introduction in England &<br />
Wales of the pre-action protocol for<br />
mortgage possession actions, which<br />
led to accusations that the Scottish<br />
Government was not affording the<br />
same protections to Scottish<br />
consumers as those enjoyed by their<br />
counterparts in England & Wales.<br />
Anyone at home?<br />
<strong>The</strong> Scottish Government gave the<br />
matter careful consideration and has<br />
now introduced the Home Owner<br />
and Debtor Protection (Scotland)<br />
Bill, likely to become an Act during<br />
the summer of 2010. <strong>The</strong> policy<br />
objectives of the bill are “to protect<br />
home owners and debtors during a<br />
period of recession”, but there is<br />
also a recognition that the measures<br />
will “continue to be appropriate in<br />
fyi<br />
<strong>The</strong> bill will permit<br />
representation in<br />
repossession<br />
proceedings by<br />
approved lay<br />
representatives<br />
the event of an early recovery”.<br />
Part 1 of the bill (part 2 deals with<br />
sequestration and trust deeds)<br />
changes the landscape in relation to<br />
repossession procedures by separating<br />
out procedures for the enforcement of<br />
securities over, on the one hand,<br />
subjects “used to any extent for<br />
residential purposes” and, on the<br />
other, wholly commercial subjects.<br />
Mortgages and other securities in<br />
the first category will be subject to a<br />
whole raft of new legislation to be<br />
developed over the next six months.<br />
<strong>The</strong> enforcement of commercial<br />
securities will remain largely<br />
unchanged, and none of the changes<br />
set out below apply to bargains where<br />
there is no usage on a residential<br />
basis. <strong>The</strong> very first question creditors<br />
need to ask themselves in future is<br />
therefore “what are the security<br />
subjects being used for?”; but canny<br />
borrowers might consider moving<br />
into their warehouses or factories for<br />
a few nights to avail themselves of the<br />
new protections.<br />
16 / the<strong>Journal</strong> December 09 www.journalonline.co.uk
Pressure on the courts<br />
Of the new concepts introduced for<br />
mortgage repossessions, the most<br />
important is surely the provision that<br />
all such cases will now require to call<br />
in court, whether or not the customer<br />
appears or is represented. <strong>The</strong> bill<br />
provides that residential claims in this<br />
area in future must be by way of<br />
summary application. Practitioners<br />
will have seen a great deal of<br />
discretion about substantive decision<br />
making under the 2001 Act, which<br />
the new bill preserves, but summary<br />
applications create the possibility of<br />
more discretion being exercised about<br />
procedure too.<br />
<strong>The</strong> Scottish Government has<br />
been very clear about stating<br />
that it understands the<br />
need for adequate<br />
resourcing of the courts<br />
to deal with all the additional<br />
hearings that will occur. It seems<br />
likely that at least 10,000 new court<br />
hearings per annum will be required,<br />
and perhaps more depending on the<br />
attitude of the courts to granting<br />
multiple continuations. It may well<br />
be that in more rural courts, the<br />
business will be able to be<br />
accommodated within existing court<br />
rolls, but in more urban settings, it is<br />
to be hoped that sufficient resource<br />
will be provided to ensure that justice<br />
does not suffer from excessive delays.<br />
Hoops for creditors<br />
When the court does consider<br />
the creditor’s application for a<br />
repossession decree, it must in all<br />
cases consider whether the creditor<br />
has followed the new concept of<br />
statutory pre-action requirements,<br />
introduced by the bill. If it has not,<br />
the creditor will not be entitled to<br />
enforce the security. <strong>The</strong>se<br />
requirements are to be fleshed out by<br />
secondary legislation but will include<br />
enforceable obligations such as that<br />
the customer should have been the<br />
subject of attempts to discuss the<br />
arrears, and that the creditor must not<br />
commence proceedings if the<br />
customer is likely to receive sufficient<br />
support from government, or under a<br />
mortgage protection policy, to make<br />
the proceedings inappropriate.<br />
If the debtor appears or is<br />
represented, the court must consider<br />
the various matters currently relevant<br />
to a mortgage rights application, such<br />
as the nature and extent of the arrears<br />
and the extent to which the creditor<br />
has sought to assist their customer.<br />
<strong>The</strong> use of summary application<br />
procedure means that the possible<br />
options open to the court are virtually<br />
www.lawscotjobs.co.uk<br />
infinite, but multiple continuations<br />
and sists seem highly likely.<br />
This is also a good place to note<br />
that yet another change the bill will<br />
achieve is the permission of<br />
representation in repossession<br />
proceedings by approved lay<br />
representatives, likely to include<br />
those working for the citizens advice<br />
bureaux, Shelter and similar<br />
organisations.<br />
A further change is to introduce a<br />
class of potential parties to the action<br />
called “entitled residents”. <strong>The</strong>se<br />
individuals, despite not having been<br />
called as defenders, may apply to the<br />
court to continue the proceedings or<br />
make any other order the court<br />
thinks fit, effectively seeking the same<br />
relief from the court as the mortgage<br />
customer is able to do if they choose.<br />
<strong>The</strong> definition of “entitled resident”<br />
is identical to the category of persons<br />
who are currently able to make an<br />
application under the 2001 Act and,<br />
as such, includes spouses, civil<br />
partners and certain specified others.<br />
<strong>The</strong> Scottish Government is currently<br />
consulting on whether – for the first<br />
time – this category of persons<br />
should be extended to include<br />
tenants, and early indications suggest<br />
that such a change may appear at<br />
stage 2 of the bill.<br />
Improved protections?<br />
Where a decree is granted, the<br />
bill seeks to permit a much more<br />
straightforward procedure to allow<br />
the debtor or an entitled resident to<br />
recall that decree. <strong>The</strong> 2001 Act<br />
caused a number of difficulties about<br />
reponing, and the new bill will<br />
probably result in an automatic recall<br />
procedure. As matters stand, only one<br />
recall application can be made and<br />
there is a time limit on applications<br />
of 14 days after a charge. It has been<br />
noted that this is actually more<br />
restrictive than the current law on<br />
reponing, which allows recall<br />
(though not of right) up until the<br />
point when the decree has been<br />
implemented. It is likely this will be<br />
changed before the bill becomes law.<br />
Finally, as matters stand there is<br />
intended reform of voluntary<br />
surrender procedure, covering the<br />
situation where the customer wishes<br />
to hand back the property. <strong>The</strong> bill<br />
seeks to reinstate the pre-2001<br />
position by allowing the period of<br />
notice in a calling-up notice to be<br />
reduced to nil, but makes the<br />
procedure to achieve that result very<br />
cumbersome, requiring that the<br />
customer and any entitled resident<br />
certify by affidavit that they do not<br />
occupy the subjects; that they are not<br />
aware of anyone else occupying the<br />
subjects; that they consent to the<br />
exercise by the creditor of its rights<br />
under the security; and that their<br />
consent is freely given and without<br />
coercion of any kind. <strong>The</strong> reaction<br />
from both the lending industry and<br />
law centres has been to question why<br />
the existing process needs changed at<br />
all, as it works well. If the current<br />
provisions remain, it is likely that<br />
most creditors will simply raise court<br />
proceedings rather than invoke this<br />
revised procedure.<br />
In terms of practical effects,<br />
inevitably for creditors it will take<br />
them longer to obtain a decree as a<br />
hearing will be required in every case.<br />
Costs are also likely to rise, partly for<br />
the same reason and partly because of<br />
the need to prepare for the hearing in<br />
relation to pre-action requirements<br />
and so on.<br />
<strong>The</strong> benefits, however, will be<br />
greater similarity with the processes<br />
in England & Wales, and reduced<br />
homelessness, which after all is the<br />
main point of the bill.<br />
Same direction<br />
Even when the new Act comes into<br />
force, this is likely to remain an area<br />
of legal flux. Lord Gill has recently<br />
recommended that all repossession<br />
actions be classed as housing cases<br />
and assigned to the district court. We<br />
await developments on that, but in<br />
the meantime, the Government is to<br />
be commended for the fact that the<br />
bill accords in many ways with the<br />
conclusions reached, quite separately,<br />
by Lord Gill’s review committee.<br />
Mark Higgins is a member of Irwin<br />
Mitchell LLP<br />
<strong>The</strong> court must in all cases<br />
consider whether the creditor<br />
has followed the new concept<br />
of statutory pre-action<br />
requirements<br />
December 09 the<strong>Journal</strong> / 17
Feature Alcohol<br />
<strong>The</strong> Alcohol etc (Scotland) Bill, now published, confirms the Scottish<br />
Government’s intention to stand by the legality of a compulsory<br />
minimum pricing mechanism. James McLean explains the European<br />
law issues on which a challenge would turn<br />
Bottle<br />
for a contest<br />
18 / the<strong>Journal</strong> December 09<br />
<strong>The</strong> Scottish Government’s<br />
proposals for alcohol<br />
pricing have attracted much<br />
comment, particularly<br />
following Advocate General Kokott’s<br />
recent opinion concerning the<br />
pricing of tobacco products<br />
(Joined cases 197/08, 198/08<br />
and 221/08 (Commission v<br />
(respectively) France, Austria, and<br />
Ireland).<br />
<strong>The</strong> two main proposals in this<br />
respect concern:<br />
banning promotions where the<br />
price per item of multiple alcohol<br />
items (of the same or different kinds<br />
and whether or not packaged along<br />
with non-alcohol items) is less than<br />
the price of the alcohol item sold<br />
singly; and<br />
minimum retail pricing, by<br />
imposing a minimum price per “unit”<br />
as a mandatory condition of premises<br />
licences and occasional licences.<br />
Both sets of proposals raise issues<br />
under European Union law. <strong>The</strong> first<br />
set also raises a devolution issue under<br />
the Scotland Act 1998,<br />
separate from the issue<br />
of competence that automatically<br />
arises alongside any EU issue.<br />
Devolved or reserved?<br />
<strong>The</strong> areas reserved to the Westminster<br />
Parliament under the Scotland Act<br />
include consumer law and competition<br />
law (sched 5, heads C3 and C7). <strong>The</strong><br />
imposition by law of a minimum price<br />
does affect competition, but it aims to<br />
alter the conduct of end purchasers, not<br />
of vendors. It addresses price viewed as<br />
purchase price available to end<br />
purchaser, not as sale price set by<br />
vendor. It is not a competition law<br />
measure; nor does it relate to the<br />
protection of consumers from vendors.<br />
<strong>The</strong> original proposals in<br />
“Changing Scotland’s Relationship<br />
with Alcohol: a Framework for<br />
Action”, included a ban on loss<br />
leading (selling below cost), which<br />
would clearly have been a<br />
competition law measure. <strong>The</strong><br />
published bill does not attempt to<br />
tackle loss leading. Nonetheless, a law<br />
which restricts specific types of<br />
promotion to consumers is a law<br />
aimed at the conduct of vendors. As<br />
EU-compatible?<br />
<strong>The</strong> crucial articles of the<br />
current EU Treaty are:<br />
“Article 34<br />
Quantitative restrictions on<br />
imports and all measures<br />
having equivalent effect shall<br />
be prohibited between<br />
Member States.”<br />
“Article 36<br />
<strong>The</strong> provisions of Articles 34<br />
and 35 shall not preclude<br />
prohibitions or restrictions on<br />
imports, exports or goods in<br />
transit justified on grounds of<br />
public morality, public policy<br />
or public security; the<br />
protection of health and life<br />
of humans, animals or<br />
plants; the protection of<br />
national treasures possessing<br />
such, it would appear to have more to<br />
do with consumer protection and<br />
competition than with health, and to<br />
be likely to be regarded as within the<br />
areas reserved to Westminster.<br />
So far as EU law is concerned, it is<br />
necessary to ignore any devolution<br />
issues. <strong>The</strong>y are entirely an internal<br />
United Kingdom matter.<br />
Fag packet approach?<br />
<strong>The</strong> main focus of media comment<br />
has been on the compatibility or<br />
otherwise of the Scottish<br />
Government’s proposals with the<br />
obligations of the United Kingdom<br />
under the Alcohol Duty Directive<br />
(92/83/EEC), and under what are<br />
now (since the entry into force of the<br />
Treaty of Lisbon) articles 34 and 36 of<br />
the Treaty on the Functioning of the<br />
European Union (formerly articles 28<br />
and 30 of the Treaty Establishing the<br />
European Community, and originally<br />
articles 30 and 36 of the Treaty of<br />
Rome). <strong>The</strong> text appears in the panel.<br />
<strong>The</strong> Scottish Government contends<br />
that both of its sets of proposals are<br />
compatible with EU law. Others<br />
contend the contrary.<br />
Minimum prices and bans on loss<br />
leading have featured in many cases<br />
before the Court of Justice, including<br />
Case 82/77 van Tiggele, Case 287/89<br />
Commission v Belgium, Joined cases C-<br />
267/91 and C-268/91 Keck and<br />
Mithouard, Joined cases C-401/92 and<br />
C-402/92 Tankstation ‘t Heukske vof<br />
and J B E Boermans, and Case 216/98<br />
Commission v Greece, in addition to<br />
the tobacco cases mentioned above.<br />
In the tobacco cases, Advocate<br />
General Kokott observed: “<strong>The</strong><br />
artistic, historic or<br />
archaeological value; or the<br />
protection of industrial and<br />
commercial property. Such<br />
prohibitions or restrictions<br />
shall not, however, constitute<br />
a means of arbitrary<br />
discrimination or a disguised<br />
restriction on trade between<br />
Member States.”<br />
www.journalonline.co.uk
decisive question is whether the<br />
measures at issue are necessary to<br />
achieve [the protection of public<br />
health] or whether there are<br />
equally suitable, but less restrictive,<br />
alternatives”; and “it must be<br />
recognised that the member state<br />
can determine the level at which it<br />
would like to protect public health<br />
and how that level is to be achieved.<br />
In that respect member states enjoy<br />
considerable discretion”. She<br />
nonetheless concluded that the court<br />
should decide that:<br />
“by maintaining in force a system<br />
of minimum prices for cigarettes...<br />
and a prohibition on selling tobacco<br />
products at a promotional price<br />
which is contrary to public health<br />
objectives, the French Republic has<br />
failed to fulfil its obligations under<br />
[the Tobacco Duties Directive]”;<br />
“by enacting and retaining legal<br />
provisions under which minimum<br />
selling prices for cigarettes and for<br />
fine-cut tobacco for the rolling of<br />
cigarettes are set by the state, the<br />
Republic of Austria has failed to fulfil<br />
its obligations under [the Tobacco<br />
Duties Directive]”; and<br />
“by imposing minimum retail<br />
prices for cigarettes, Ireland has failed<br />
to fulfil its obligations under [the<br />
Tobacco Duties Directive]”.<br />
<strong>The</strong> opinion is about the Tobacco<br />
Duty Directive 95/59/EC. <strong>The</strong> structure<br />
for duty on tobacco is significantly<br />
different from that for alcoholic<br />
beverages under the Alcohol Duty<br />
Directive 92/83/EEC. Tobacco duty is a<br />
function of the maximum retail price<br />
of tobacco, a maximum which the<br />
directive requires the manufacturers to<br />
be free to set. Alcohol duty is based on<br />
volume of alcohol, not price.<br />
Interference with pricing of alcohol<br />
may not be as destabilising for the<br />
duty regime as in the case of tobacco.<br />
It should not be assumed that<br />
observations about the effect of<br />
harmonisation of the structure of<br />
tobacco duty are entirely transferable<br />
to the harmonisation of the structure<br />
of alcohol duty. It is, however, true that<br />
in relation to alcohol, as to tobacco,<br />
the legal issues concern not only free<br />
movement but also compatibility with<br />
the duty directives.<br />
Case law issues<br />
<strong>The</strong> earlier case law seemed to suggest<br />
that, as a matter of free movement, a<br />
ban on loss leading was not a measure<br />
falling under article 34 and so did not<br />
need to be justified under article 36.<br />
<strong>The</strong> AG’s opinion can be read as<br />
compatible with that view and as<br />
condemning the bans only because of<br />
www.lawscotjobs.co.uk<br />
fyi<br />
So far as EU law<br />
is concerned, it is<br />
necessary to ignore<br />
any devolution issues<br />
as entirely an internal<br />
UK matter<br />
their alleged interference with the<br />
structure of tobacco duty. Whether the<br />
court will agree that harmonisation of<br />
duty structures necessarily renders an<br />
article 36 defence irrelevant remains<br />
to be seen. <strong>The</strong> free movement cases<br />
have not been as tolerant of<br />
minimum pricing as of restrictions on<br />
promotion, but we should be wary of<br />
treating past applications of a<br />
principle as though they amounted to<br />
a self-standing rule of law.<br />
<strong>The</strong> issues that emerge from the<br />
relevant case law on free movement<br />
are most easily expressed as a set of<br />
layered questions, each applied to<br />
each of the proposals:<br />
is it a “measure having equivalent<br />
effect” to a “quantitative restriction<br />
on imports”;<br />
if so, is it capable of being “justified<br />
on grounds of public... policy or public<br />
security; the protection of health and<br />
life of humans”, while not constituting<br />
“a means of arbitrary discrimination or<br />
a disguised restriction on trade between<br />
Member States”;<br />
if so, does it operate as a restriction<br />
only to an extent that is proportionate<br />
to the legitimate objective pursued<br />
(put differently, is it really impossible<br />
to achieve the objective in a way that<br />
causes less disruption or disadvantage<br />
to trade in imported products)?<br />
Basically, one would expect an EU<br />
law challenge to amount essentially to<br />
a “Yes” to the first question, followed<br />
by “No” and “No, anyway”. Conversely<br />
the expected defence for promotion<br />
restrictions might amount to<br />
responding “No” to the first question,<br />
on the grounds that they are “national<br />
provisions restricting or prohibiting<br />
certain selling arrangements” that<br />
“apply to all relevant traders operating<br />
within the national territory and...<br />
affect in the same manner, in law and<br />
in fact, the marketing of domestic<br />
products and of those from other<br />
member states”. For minimum pricing<br />
the defence response might be<br />
“Maybe” or “Yes”, followed by “Yes”<br />
and “Yes” to the other questions.<br />
Battle lines<br />
<strong>The</strong> challenge to minimum pricing<br />
would be likely to be argued along<br />
the following lines:<br />
that minimum pricing reduces the<br />
price advantage of non-premium<br />
products over premium products;<br />
that this is a “measure having<br />
equivalent effect” to a “quantitative<br />
restriction on imports”;<br />
that the effect of deterring<br />
consumption by increasing the cost of<br />
alcoholic drink could be achieved<br />
with less or no impediment to<br />
imports simply by increasing duty<br />
across the board (the European<br />
Commission’s view);<br />
that even if minimum pricing were<br />
acceptable, it should be fixed by<br />
reference to volume rather than the<br />
British “unit”;<br />
that the reservation to Westminster<br />
of the fixing of duty rates is an internal<br />
UK matter and consequently not<br />
pleadable at EU level as a justification<br />
for not having taken that course; and<br />
that the minimum pricing<br />
therefore fails the “proportionality”<br />
test and is consequently not saved by<br />
article 36.<br />
<strong>The</strong> rejoinder might need to be to<br />
the following effect:<br />
admitted that the proposed<br />
minimum pricing legislation may well<br />
be a measure having equivalent effect;<br />
the health and public order issue is<br />
not simply “people drink too much<br />
alcohol”, but “there is credible<br />
evidence that certain identified<br />
health and public order problems are<br />
attributable (to a significant extent) to<br />
certain identified patterns of<br />
purchase of alcohol”;<br />
the proposed minimum pricing<br />
legislation is a fine-tuned measure<br />
that precisely targets those patterns<br />
and there is credible evidence that it<br />
will disrupt them and thereby<br />
diminish the incidence of the<br />
identified health and public order<br />
problems; it treats equally all types of<br />
alcoholic drink, beers, wines, spirits<br />
and “tonic wines”;<br />
the “unit” (expected to be defined<br />
in the pricing order as 10 millilitres of<br />
ethyl alcohol) is a simple volume<br />
measure with an objective scientific<br />
basis, being (in that case) the amount<br />
that the human body can break down<br />
in one hour;<br />
in all the circumstances the<br />
proposed minimum pricing<br />
legislation is, if anything, a less<br />
disproportionate response to the<br />
identified problem than would be an<br />
across-the-board increase in duty.<br />
This would be a novel health and<br />
economic analysis to present to the<br />
Court of Justice and would take it<br />
into uncharted waters.<br />
<strong>The</strong> assembling of evidence of<br />
harm attributable to misuse of<br />
alcohol is not the end but only the<br />
beginning of the task that lies ahead<br />
for the Scottish Government. <strong>The</strong> bill<br />
takes the form of an enabling Act.<br />
This will gives interested parties<br />
adequate opportunity, if they wish, to<br />
take legal action to try to prevent the<br />
making of the enabled orders.<br />
James McLean, Burness LLP<br />
December 09 the<strong>Journal</strong> / 19
Feature VAT<br />
Debra Dougal points out how the pending increase in VAT will affect transactions<br />
that straddle the New Year, in particular the provision of legal services<br />
Ready for<br />
the VAT rise?<br />
20 / the<strong>Journal</strong> December 09 www.journalonline.co.uk
It is just a year since the<br />
Government rushed<br />
through, in a matter of<br />
days, a reduction in the<br />
VAT rate to 15%. We were told<br />
that this would stimulate the<br />
economy. Whether it did or not<br />
is one for the political<br />
commentators; but the 13 month<br />
temporary reduction is now<br />
almost at an end and we must<br />
prepare ourselves for a return to<br />
17.5% VAT on 1 January 2010.<br />
<strong>The</strong> advantage this time is that<br />
we have had time to prepare and<br />
to look for the opportunities this<br />
increase may present. <strong>The</strong><br />
disadvantage, apart from the<br />
obvious extra 2.5% we will all<br />
now pay, is that an increase<br />
presents rather more pitfalls for<br />
business than a reduction.<br />
HMRC tell us they will take a<br />
“light touch” to errors resulting<br />
from the increase. We shall see…<br />
What are the practicalities?<br />
<strong>The</strong> first and most important<br />
thing to remember is the tax<br />
point rules, and that a tax point<br />
is the date on which VAT is<br />
calculated.<br />
<strong>The</strong>re are two tax points, the<br />
basic tax point and the actual<br />
tax point.<br />
<strong>The</strong> basic tax point is created<br />
when goods are delivered or<br />
change hands and when a service<br />
is performed. However, the basic<br />
tax point is overridden by an<br />
actual tax point, which happens<br />
when money is received prior to<br />
the basic tax point or when an<br />
invoice is issued up to 14 days<br />
after the basic tax point. In<br />
simple terms, money comes first,<br />
then the supply of goods or<br />
services, and finally the invoice.<br />
<strong>The</strong>re is a concession at the time<br />
of a rate increase which allows the<br />
basic tax point to be used as the<br />
relevant date if the issue of an<br />
invoice would result in the higher<br />
rate of VAT being charged.<br />
Putting this into a practical<br />
example, if I order a new car on<br />
20 December but don’t take<br />
delivery until New Year, when I<br />
receive an invoice on the date of<br />
www.lawscotjobs.co.uk<br />
delivery, I will pay VAT at 17.5%.<br />
If, however, I receive an invoice<br />
before 31 December or pay<br />
before that date, the VAT payable<br />
will only be 15%.<br />
If (unlikely I know) I take<br />
delivery of my car on 31 December<br />
but don’t receive an invoice or pay<br />
any money until New Year, the car<br />
dealer has the option to charge<br />
17.5% based on the invoice date,<br />
or 15% because I took delivery of<br />
the car and so received the goods<br />
when the VAT rate was 15%.<br />
This presents some<br />
opportunities for cashflow<br />
boosting; but before we get to<br />
that, back to a few practicalities.<br />
Some businesses have pointed<br />
out that a change of rate at a<br />
minute past midnight on the<br />
busiest night of the year is a<br />
nonsense, and so the<br />
Government has agreed a<br />
concession for those retailers<br />
operating point of sale retail<br />
schemes who are open at<br />
midnight on 31 December. For<br />
them the VAT rate remains at<br />
15% until the end of their 31<br />
December trading session or at<br />
6am on 1 January 2010,<br />
whichever comes first.<br />
<strong>The</strong> group facing some of the<br />
trickiest of problems are those<br />
businesses who make<br />
continuous supplies of services,<br />
and so issue applications for<br />
payment rather than invoices.<br />
This broadly encompasses<br />
landlords, the construction<br />
industry and professional<br />
practices – lawyers and<br />
accountants largely. For us, the<br />
problem is that we have no basic<br />
tax point and our application for<br />
payment does not create any tax<br />
point, so that, if we issue an<br />
application at 15% but don’t get<br />
paid until 2010 when our invoice<br />
is generated by receipt of<br />
payment, we have to account for<br />
VAT at 17.5% and not the 15%<br />
we requested from our client.<br />
Where the timespan of the<br />
service to which the invoice<br />
relates is clear, such as a rent<br />
invoice, we are allowed to<br />
apportion the VAT between the<br />
Although this may amount to<br />
relatively little, with interest<br />
rates being so low an invitation<br />
to pay in advance is tempting<br />
element of time at 15% and the<br />
remainder at 17.5%, but for<br />
most true continuous services,<br />
this is difficult and time<br />
consuming to establish and,<br />
moreover, to prove.<br />
Where’s the good news?<br />
Simply, it’s all about cashflow and<br />
using this as an opportunity to<br />
give it a boost. Any private<br />
individual or business that cannot<br />
claim back all of the VAT it pays<br />
out will want to avoid the extra<br />
2.5% cost, and although this may<br />
amount to relatively little, with<br />
interest rates being so low an<br />
invitation to pay in advance is<br />
more tempting.<br />
<strong>The</strong>re is anti-forestalling<br />
legislation to prevent serious<br />
misuse of this opportunity, but<br />
this only kicks in under specific<br />
circumstances and if the<br />
customer is unable to reclaim all<br />
of the VAT charged. Where this is<br />
the case, it’s still only an issue if<br />
there is advance invoicing or<br />
payment exceeding £100,000,<br />
credit terms of more than six<br />
months, connected parties, or<br />
co-financing of the purchase.<br />
Even then, a defence of normal<br />
commercial practice could still<br />
allow the transaction at 15%.<br />
Where the anti-forestalling<br />
legislation is breached, the 15%<br />
VAT rate still applies to the pre-31<br />
December tax point but an<br />
additional 2.5% becomes<br />
immediately payable on 1<br />
January. Although I envisage the<br />
imposition of this being limited,<br />
the new penalty regime could<br />
make this an expensive move and<br />
I warn caution to anybody who<br />
thinks they might be caught by<br />
the anti-forestalling rules.<br />
Finally, let’s look on the<br />
bright side again and consider<br />
that we may be only six months<br />
or so away from another VAT<br />
rate increase. Never mind the<br />
extra cost that 20% VAT would<br />
bring: after three rate changes<br />
in about 18 months we will all<br />
be experts.<br />
Debra Dougal is a VAT partner at<br />
Haslers, chartered accountants, Essex,<br />
and a member of UK200Group Tax<br />
Panel. e: debra.dougal@haslers.com<br />
December 09 the<strong>Journal</strong> / 21
<strong>Professional</strong> news Society<br />
New website to promote<br />
training openings<br />
<strong>The</strong> Society is introducing a recruitment portal for traineeships<br />
and student summer placements, at no cost to advertisers<br />
As the Society continues to<br />
strengthen its focus on supporting<br />
and representing the profession, the<br />
introduction of a recruitment portal<br />
advertising traineeships and summer<br />
placements is an exciting<br />
development for law students and<br />
the profession alike.<br />
Unlike most recruitment websites,<br />
training organisations can post their<br />
vacancies for free and without agency<br />
involvement, allowing direct links to be<br />
built between the training organisations<br />
and future trainees from an early stage.<br />
Placements and traineeships come in<br />
all shapes and sizes and we have<br />
developed this website to ensure all<br />
training organisations have an equal<br />
platform to tell students about the<br />
various opportunities. Training<br />
organisations advertise in different ways<br />
and at different times, and this site<br />
allows each organisation to<br />
complement their existing recruitment<br />
methods at no cost.<br />
During the LLB and Diploma, most<br />
students have very little contact with<br />
the profession, and their only<br />
awareness may come from their<br />
university law fair. With an average of<br />
25-30 training organisations<br />
22 / the<strong>Journal</strong> December 09<br />
attending, law fairs rarely represent<br />
the broad spectrum of traineeships<br />
and summer placements available.<br />
This website seeks to place all<br />
training organisations on an equal<br />
footing to attract high calibre<br />
individuals suited to their needs.<br />
It also seeks to replace the Society’s<br />
traditional “training register”, putting<br />
the onus on graduates to search for<br />
available traineeships, and become<br />
more proactive in finding an<br />
opportunity. Persistence and<br />
perseverance are qualities that will<br />
serve all graduates well at any time<br />
and stage of their career, but never<br />
more so than during this difficult<br />
economic climate. It is no secret that<br />
the competition for training contracts<br />
and summer placements is<br />
particularly keen at the moment, and<br />
I have been impressed by the<br />
prospective trainees now emerging<br />
from the LLB and Diploma who are<br />
ensuring they are as employable and<br />
competitive candidates as possible.<br />
Interest in opting to receive<br />
communications for the Society (New<br />
Lawyers’ News), attending CPD for<br />
new lawyers seminars, and gaining<br />
valuable work experience, has soared<br />
fyi<br />
Elsewhere:<br />
Crown<br />
disclosure to<br />
defence lawyers<br />
– see p45<br />
Training<br />
organisations<br />
retain an<br />
appetite for<br />
high calibre<br />
graduates,<br />
despite the<br />
economic<br />
uncertainty,<br />
and it’s not<br />
difficult to<br />
see why<br />
this year, and as a result the<br />
profession can benefit from<br />
employing engaged, committed<br />
graduates who have made a conscious<br />
decision to pursue a legal career.<br />
Training organisations retain an<br />
appetite for high calibre graduates,<br />
despite the economic uncertainty, and<br />
it’s not difficult to see why. Today’s<br />
trainees may become senior members<br />
of the organisation in the future. Both<br />
the organisation and the trainee can<br />
benefit from a genuine investment in<br />
the trainee’s future.<br />
I intentionally use the word<br />
“investment”, as recruiting a trainee<br />
can provide all training organisations<br />
with an opportunity to “grow your<br />
own assistant”. This phrase was<br />
coined to convey the long term goal<br />
of an organisation recruiting a<br />
summer student or trainee with a<br />
view to them becoming an<br />
established member of the<br />
organisation in the future and,<br />
ultimately, take on the succession.<br />
<strong>The</strong>y can only do this if there are<br />
bright and capable assistants ready to<br />
step up to the challenge. For this<br />
reason, the importance of recruiting<br />
the right employees cannot be<br />
overestimated. Recruiting the right<br />
people now can pay dividends in the<br />
future, and by developing this website<br />
the Society is recognising the<br />
importance of ensuring training<br />
organisations have a fair opportunity<br />
to offer placements and traineeships<br />
to law students, and ultimately invest<br />
in the future of their organisation.<br />
<strong>The</strong> flexibility this new website<br />
affords means that training<br />
organisations can offer a variety of<br />
opportunities, depending what is<br />
appropriate for them, whether one<br />
short summer placement or 20<br />
traineeships. With no charge to<br />
advertise your vacancies, this may just<br />
be an investment worth making.<br />
To find out more about advertising your<br />
placement or traineeship vacancies free on<br />
lawscotjobs.co.uk, email<br />
newlawyers@lawscot.org.uk .<br />
Heather McPhee, Development<br />
Officer, Education & Training<br />
www.journalonline.co.uk
Diploma validity<br />
extended<br />
Students looking for traineeships<br />
are reminded that the Diploma<br />
in Legal Practice is valid for a<br />
period of two years from 1<br />
January after the Diploma is<br />
awarded. For example a Diploma<br />
awarded in August 2007 is valid<br />
until 31 December 2009.<br />
However, it is possible to apply<br />
to the Society for the validity of<br />
the Diploma to be extended.<br />
Applications are being treated<br />
sympathetically in the current<br />
economic climate. <strong>The</strong> Society<br />
will take into account relevant<br />
work experience and courses<br />
undertaken, as well as the<br />
applicant’s efforts to secure a<br />
traineeship. Applications should<br />
be made to the Society<br />
approximately two months<br />
before the Diploma expires.<br />
For more information about how to<br />
apply or to discuss any aspect of your<br />
traineeship, please contact Katie Meanley,<br />
Manager, Registrar’s Department on<br />
0131 476 8105/8200 or email her at<br />
katiemeanley@lawscot.org.uk .<br />
www.lawscotjobs.co.uk<br />
It has been an interesting year for<br />
solicitor advocates. <strong>The</strong> Rights of<br />
Audience Review is well underway<br />
and now the Society’s Council has<br />
approved 15 solicitor advocates as<br />
senior for legal aid purposes. This<br />
may help to address some of the<br />
concerns expressed in the<br />
Woodside case.<br />
<strong>The</strong> Council’s approval is the<br />
end result of a lengthy process of<br />
discussion and consultation, and<br />
helps to remedy what some have<br />
seen as an anomalous situation.<br />
To quote from the material<br />
issued to all potential<br />
applicants, taken in turn from<br />
the consultation: “<strong>The</strong> Law<br />
Society of Scotland is keen to<br />
stress that this scheme is not an<br />
alternative QC structure. <strong>The</strong><br />
scheme aims to ensure that<br />
there is some independent<br />
element available to check that<br />
payments from public funds are<br />
being made appropriately.<br />
“Accreditation will be given to<br />
those solicitor advocates who are<br />
the most able and experienced<br />
and have demonstrated the<br />
ability to deal with the most<br />
serious cases.”<br />
<strong>The</strong> list of 15 names is the<br />
work of the assessment panel<br />
established under the<br />
Russell guests at ceremony<br />
Sir Muir Russell, former Permanent Secretary to the Scottish Executive and Principal of<br />
Glasgow University, and now chairman of the Judicial Appointments Board for Scotland, was<br />
guest speaker at the Society’s recent Admission Ceremony in the Signet Library, where he is<br />
pictured (right) with Chief Executive Lorna Jack and President Ian Smart.<br />
Relocation project review<br />
<strong>The</strong> audit report on the delayed project to relocate from Drumsheugh Gardens to new premises<br />
was considered by Council members at the November meeting. <strong>The</strong> Society proposed the<br />
report should be prepared in an amendment to a proposal which was then passed at the<br />
Society’s SGM in September. Council noted the review and agreed it should be available in full<br />
on the Society’s website: see www.lawscot.org.uk/about/finance/annualreports .<br />
First solicitor advocates<br />
approved as “senior”<br />
chairmanship of Sheriff Principal<br />
Bowen. <strong>The</strong> panel consisted on<br />
this occasion of Alayne Swanson,<br />
President of the Society of<br />
Solicitor Advocates, Ian Bryce,<br />
solicitor advocate and member<br />
of the Society’s Council, Criona<br />
Courtney, lay member, and Alex<br />
Prentice QC, assistant principal<br />
advocate depute.<br />
Applicants all had at least seven<br />
years’ experience as solicitor<br />
advocates, although in many cases<br />
this figure was easily exceeded.<br />
<strong>The</strong> application form asked for<br />
details of cases undertaken in the<br />
last two years, along with other<br />
relevant information.<br />
It was intended that the list<br />
should reflect the reality of those<br />
who are currently undertaking<br />
cases of gravity and difficulty,<br />
such as might also be dealt with<br />
by QCs. As a result colleagues<br />
will probably recognise most or<br />
all of the names on the list.<br />
In passing it is worth noting<br />
that the new accreditation scheme<br />
attracted many more applications<br />
PPC<br />
members<br />
<strong>The</strong> <strong>Professional</strong><br />
Practice Committee is<br />
pleased to announce<br />
that following the<br />
resignation of three<br />
solicitor members over<br />
the course of the last<br />
year, it has brought its<br />
membership back up<br />
to a full complement<br />
with the appointment<br />
of three new<br />
members: Norman<br />
Banski (Council<br />
member), Derek Allan<br />
and Valerie O’Neil.<br />
than the single application for silk<br />
received this year. <strong>The</strong> drop in<br />
applications to be a QC, from<br />
solicitor advocates in particular,<br />
was the subject of comment from<br />
Sir William Rae, the independent<br />
observer of the QC application<br />
process. No doubt this will be the<br />
subject of further discussion.<br />
Accreditation is for a period of<br />
five years only and is subject to<br />
review thereafter. This is meant<br />
as a means of ensuring that high<br />
standards are maintained.<br />
As part of this exercise, solicitor<br />
advocates with four years’<br />
experience will automatically be<br />
entitled to claim remuneration as<br />
“junior as leader”.<br />
<strong>The</strong> next step is for changes to<br />
be made to the legal aid<br />
regulations. We understand that<br />
this should happen early next<br />
year. From that point on, only<br />
those on the list will be entitled<br />
to charge senior rates.<br />
John Scott, Vice President (Crime),<br />
Society of Solicitor Advocates<br />
Obituaries<br />
FRANCIS ANTHONY PATTERSON<br />
(retired solicitor), Clarkston<br />
On 9 May 2009, Francis Anthony<br />
Patterson, formerly partner and latterly<br />
consultant to the firm Peterkins, Aberdeen.<br />
AGE: 80<br />
ADMITTED: 1954<br />
ROBERT IRVINE GLOYER<br />
(retired solicitor), Burghead, Moray<br />
On 25 October 2009 Robert Irvine<br />
Gloyer, formerly partner of the firm<br />
Leonards, Hamilton.<br />
AGE: 73<br />
ADMITTED: 1959<br />
JOHN HENDERSON SINCLAIR<br />
(retired solicitor), Crail<br />
On 8 November 2009, John Henderson<br />
Sinclair, formerly sole practitioner, Glasgow<br />
and latterly consultant to the firms Golds<br />
and Davidson Fraser, both Glasgow.<br />
AGE: 74<br />
ADMITTED: 1962<br />
More news><br />
Property law news items are<br />
on pp56-57<br />
December 09 the<strong>Journal</strong> / 23
<strong>Professional</strong> news Society<br />
<strong>The</strong> request for solicitors to take<br />
part in a survey of views of the<br />
Society attracted almost 1,900<br />
completed online questionnaires,<br />
resulting in the most<br />
comprehensive study of its kind<br />
undertaken by the Society.<br />
“That amounts to an excellent<br />
response rate of 19%,” says<br />
Aileen Baxter, from the<br />
independent market research<br />
agency, Progressive, who carried<br />
out the research. “Compare that<br />
with standard business research,<br />
which might get a response rate<br />
of 5-10%. <strong>The</strong>re was also a good<br />
mix of responses in terms of the<br />
profile of individuals and the<br />
sectors they represented. All in<br />
all, the feedback suggests a<br />
healthy level of engagement<br />
among solicitors in Scotland.”<br />
Although the research was<br />
designed to be as user-friendly<br />
as possible, it included a<br />
comprehensive set of detailed<br />
questions that covered many<br />
aspects of the Society’s work. A<br />
free text section allowed solicitors<br />
to add personal comment. A<br />
number of themes emerged from<br />
the analysis of the responses.<br />
“Overall, those who<br />
responded were broadly satisfied<br />
with the work of the Society but<br />
there were a number of areas<br />
where members think<br />
improvements could be made,”<br />
Baxter adds. “On the whole,<br />
professional representation<br />
appears to be meeting members’<br />
needs, with strong support for<br />
political representation. But<br />
members expect more targeted<br />
support from the Society in<br />
future.”<br />
Other headline findings include:<br />
All the services provided by<br />
the Society are considered<br />
important.<br />
Further work is needed to<br />
move members from “satisfied”<br />
to “very satisfied”.<br />
Gaps exist in awareness levels of<br />
some of the services, particularly<br />
CPD and traineeships.<br />
Services will only be accessed<br />
when relevant to particular<br />
members and so, while valued,<br />
overall usage can be low in<br />
some areas.<br />
<strong>The</strong> top areas on which<br />
members feel the Society should<br />
concentrate in the future are<br />
legal aid, regulation, and<br />
improving perception of the<br />
profession with the public.<br />
24 / the<strong>Journal</strong> December 09<br />
<strong>The</strong> Society’s recent online membership survey generated<br />
much positive feedback, as Craig Watson reports<br />
Your feedback<br />
Staff dealing with enquiries<br />
are polite and helpful<br />
(18% no experience)<br />
Staff dealing with<br />
enquiries are informative<br />
(18% no experience)<br />
Enquiries dealt with promptly<br />
(20% no experience)<br />
Information from Society<br />
available in a variety of<br />
formats (11% no experience)<br />
Society provides good quality<br />
business support, training/CPD<br />
(14% no experience)<br />
Strongly disagree<br />
3%<br />
3%<br />
3%<br />
5%<br />
Figure 1: the Society’s customer service. <strong>The</strong>re are no issues with any aspects of general customer service although the<br />
proportions of no opinion (neither good nor bad) suggest some further work may be needed to fully understand opinions<br />
Legal Aid<br />
Regulation (ie Scottish Legal<br />
Complaints Commission)<br />
Improving perception of<br />
profession with the public<br />
Promoting the profession in the media<br />
Educational policy for future generations<br />
Support for trainees and<br />
newly qualified solicitors<br />
Equal opportunities for female lawyers<br />
Promoting Scotland as<br />
Alternative Resolution Centre<br />
Promoting the profession to<br />
those interested in law career<br />
Low Medium High<br />
Figure 2: areas where the Society should concentrate representation. <strong>The</strong> top areas members feel the Society should provide<br />
relate to “regulation”, “improving perceptions with the public” and “legal aid” with the more promotional aspects receiving the<br />
lowest level of interest<br />
Awareness issue<br />
In summary, says Aileen Baxter,<br />
there is work for the Society to<br />
do in raising awareness of the<br />
services it provides and<br />
understanding the opinions of<br />
members – conclusions<br />
acknowledged by the Society’s<br />
Chief Executive, Lorna Jack.<br />
“<strong>The</strong> Society has carried out<br />
some important research in<br />
recent years,” she says. “For<br />
instance, on CPD and among<br />
<strong>Journal</strong> readers as well as in the<br />
form of individual studies, such<br />
as Women in the Legal Profession<br />
9%<br />
14% 64% 19%<br />
22%<br />
24%<br />
22%<br />
35%<br />
Disagree Neither agree nor disagree Agree Strongly agree<br />
in Scotland and Profiling the<br />
Profession. But it is a decade or so<br />
since we asked for members’<br />
views on the Society itself.<br />
“Given that the profession is<br />
going through a period of<br />
unprecedented change and<br />
challenge, it was really important<br />
to gather their views. Ultimately,<br />
the purpose is to make sure we<br />
meet our commitment to provide<br />
relevant and effective services by<br />
making improvements where<br />
necessary. To do that, we need<br />
feedback from our members and<br />
I would like to thank all those<br />
59% 15%<br />
9% 34% 57%<br />
58% 12%<br />
63% 10%<br />
10% 34% 56%<br />
10% 34% 56%<br />
16% 38% 46%<br />
12% 44% 44%<br />
10% 48% 42%<br />
48% 5%<br />
30% 41% 29%<br />
35% 42% 23%<br />
35% 45% 20%<br />
who took the time to give us their<br />
views. <strong>The</strong> fantastic response from<br />
the profession perhaps suggests<br />
that such an exercise was long<br />
overdue.<br />
Society marketing manager<br />
Angus Maclauchlan continues:<br />
“<strong>The</strong> results are largely in line<br />
with what we expected. We are<br />
conscious that there are many<br />
different voices within the<br />
profession. We have to reconcile<br />
the needs of those diverse groups<br />
and that presents a considerable<br />
challenge. But the research will<br />
make that significantly easier as<br />
www.journalonline.co.uk
Figure 3: ways in which the Society represents solicitors. Highest levels of interest lie with representation at Holyrood, although<br />
political representation in all areas is considered by most members something the Society should concentrate on<br />
Figure 4: information provision in the future. Law Society website and journal wanted and used the most, followed by find a<br />
solicitor, monthly e-bulletin, handbook and jobs, with the cost of time and Brussels agenda only considered if relevant to the<br />
individual solicitor<br />
Figure 5: satisfaction with confidential professional practice helpline. No issues with any of the services used<br />
we now know where to focus<br />
and have a better idea of who is<br />
looking for which service.”<br />
Like Aileen Baxter, he recognises<br />
the overall satisfaction level while<br />
www.lawscotjobs.co.uk<br />
BRUSSELS WESTMINSTER HOLYROOD<br />
61% 51% 49%<br />
25%<br />
30%<br />
11%<br />
15% 15%<br />
3% 4% 4%<br />
Views of Views of<br />
profession profession<br />
on on major<br />
legislation bills<br />
98% 93% 94% 93%<br />
Law<br />
Society<br />
website<br />
Ethics advice<br />
Money laundering<br />
Business structure<br />
Information on rules<br />
Guidance notes on<br />
practice issues<br />
<strong>The</strong><br />
<strong>Journal</strong><br />
32%<br />
Informing<br />
on legal<br />
issues<br />
76% 66% 64% 85% 75% 72%<br />
18%<br />
5%<br />
25%<br />
8%<br />
27%<br />
8%<br />
12%<br />
4% 35% 58%<br />
4% 11%<br />
2% 3%<br />
15%<br />
8%<br />
8%<br />
86%<br />
‘Find a<br />
solicitor’<br />
function<br />
3%<br />
Views of<br />
profession<br />
on<br />
legislation<br />
64%<br />
9%<br />
72%<br />
Views of<br />
profession<br />
on major<br />
bills<br />
58%<br />
Monthly<br />
e-bulletin<br />
43%<br />
51%<br />
56%<br />
67%<br />
Informing<br />
on legal<br />
issues<br />
35%<br />
41%<br />
Scottish<br />
solicitors<br />
handbook<br />
62%<br />
Views of<br />
profession<br />
on<br />
legislation<br />
30%<br />
Law<br />
scotjobs.<br />
co.uk<br />
identifying that lack of awareness<br />
of services is an area which needs<br />
looking at. But he also highlights<br />
a number of individual issues. <strong>The</strong><br />
positive findings include:<br />
20%<br />
4%<br />
Views of<br />
profession<br />
on major<br />
bills<br />
44%<br />
17%<br />
Cost of<br />
Time<br />
40%<br />
38%<br />
36%<br />
35%<br />
31%<br />
22%<br />
5%<br />
Informing<br />
on legal<br />
issues<br />
9%<br />
Brussels<br />
Agenda<br />
Unsure Very poor Quite poor Neither good nor poor Quite good Very good<br />
High<br />
Medium<br />
Low<br />
Not<br />
relevant<br />
Society<br />
should keep<br />
Plan to use<br />
in the future<br />
1%<br />
None<br />
% good<br />
93%<br />
83%<br />
73%<br />
87%<br />
90%<br />
In terms of basic customer<br />
service, a total of 83% agreed or<br />
strongly agreed that staff dealing<br />
with enquiries were polite and<br />
helpful.<br />
Very high levels of awareness<br />
and usage of the main<br />
information provision services –<br />
for instance, 99% awareness of<br />
both the <strong>Journal</strong> and website as<br />
well as 72% for the relatively<br />
new monthly e-bulletin.<br />
Satisfaction levels with sources of<br />
information were also high.<br />
Very high satisfaction levels<br />
with continuous professional<br />
development, career<br />
development and the<br />
professional practice helpline.<br />
Encouraging levels of<br />
awareness and satisfaction with<br />
the relatively new membership<br />
services, which aim to generate<br />
income and therefore lead to less<br />
reliance on the PC fee.<br />
Developments<br />
Commenting on the research,<br />
Neil Stevenson, Director of<br />
<strong>Professional</strong> Support at the<br />
Society, says: “It is reassuring that<br />
members think we are getting a<br />
lot of the basics right, although we<br />
need to look at how we can better<br />
represent individual solicitors<br />
rather than the profession as a<br />
whole. Likewise, while there is a<br />
general endorsement of our<br />
communication tools, other<br />
publications are less well known.<br />
We also see users are satisfied with<br />
career development but there are<br />
mixed levels of awareness about<br />
the services that exist, as there are<br />
in relation to services for those<br />
taking on trainees. Other areas we<br />
will be developing include<br />
providing an online legal library,<br />
black letter law updates and more<br />
online CPD. We are also already<br />
examining the viability of a more<br />
flexible PC fee structure.”<br />
<strong>The</strong> results of the research will<br />
now be analysed in more detail.<br />
At the same time, the Society’s<br />
teams have been asked to identify<br />
where they believe improvements<br />
could be made. <strong>The</strong> research will<br />
be followed up with qualitative<br />
research to build on the<br />
quantitative survey. Angus<br />
Maclauchlan concludes: “In the<br />
past, we have relied to an extent<br />
on anecdotal evidence – this<br />
research, along with that still to<br />
be carried out, will give us a<br />
sound body of evidence on which<br />
to make decisions for the future.<br />
One powerful message that came<br />
through was that solicitors want<br />
us to provide a broad range of<br />
services from which they can<br />
select the ones they require.”<br />
December 09 the<strong>Journal</strong> / 25
<strong>Professional</strong> news Society<br />
<strong>The</strong> very definition o<br />
<strong>The</strong> Society is now consulting further on the shape of the Registered Paralegal<br />
scheme to be introduced next year. Collette Paterson explains why<br />
One clue is in the title, as what it means<br />
to be a paralegal has never truly been<br />
defined in Scotland. <strong>The</strong> pace of<br />
change over the last few years demands<br />
that we now identify and create a<br />
structure for an estimated 10,000<br />
people working in this capacity in the<br />
Scottish legal profession.<br />
Between May and July last year, in<br />
partnership with the Scottish<br />
Paralegal Association (SPA), the<br />
Society held a preliminary<br />
consultation on the creation of a<br />
regulated status for paralegals in<br />
Scotland, and the concept of the<br />
“registered paralegal”.<br />
<strong>The</strong> consultation, which attracted<br />
over 400 responses, closed during the<br />
What the scheme involves<br />
How will someone become a<br />
registered paralegal?<br />
Transitional arrangements have<br />
been developed which ensure<br />
fair access for those who<br />
already meet the standard, in<br />
recognition of those with<br />
qualifications and those<br />
without certain qualifications,<br />
but with relevant experience.<br />
Otherwise, all entrants will:<br />
provide evidence of their<br />
“relevant qualification”, and<br />
details of a supervising solicitor;<br />
enter as a “trainee registered<br />
paralegal” and work towards<br />
agreed standards during a one<br />
year training period;<br />
qualify as a registered<br />
paralegal with the agreement of<br />
the supervising solicitor after a<br />
year’s training period;<br />
continue working under a<br />
supervising solicitor and adhere<br />
to a code of conduct, CPD<br />
regime, and be subject to<br />
sanctions for non-compliance, or<br />
in the event of a complaint<br />
naming them which is upheld.<br />
26 / the<strong>Journal</strong> December 09<br />
economic decline and, while no<br />
launch date was confirmed, analysis of<br />
the responses and crucial<br />
development on a potential<br />
framework for the scheme<br />
continued through 2009. By<br />
bringing the project under the<br />
management of the<br />
Education and<br />
Training Policy<br />
Department, which<br />
was on the cusp of<br />
delivering an<br />
unprecedented<br />
change<br />
programme<br />
regarding a new<br />
route to qualification<br />
Which areas of practice<br />
are covered?<br />
<strong>The</strong> Society has developed a set of<br />
base competencies which apply<br />
regardless of practice area. In<br />
addition, each applicant to the<br />
scheme and their supervising<br />
solicitor will complete a<br />
questionnaire which draws out the<br />
specific skills, knowledge, attitudes<br />
and values which apply to their<br />
practice area. To assist applicants<br />
with their understanding of this<br />
process, questionnaires have been<br />
completed for six “guide areas” –<br />
conveyancing, civil litigation, wills<br />
and executries, criminal litigation,<br />
debt recovery, and liquor licensing.<br />
What are the benefits<br />
to paralegals?<br />
A robust set of entry criteria will<br />
apply to the scheme. Through<br />
that, and a code of conduct and<br />
CPD regime, a professional<br />
status and defined career path<br />
for paralegals will emerge. It is<br />
envisaged that higher grades of<br />
registered paralegal, and fasttrack<br />
routes into the scheme, will<br />
be developed in a later phase.<br />
<strong>The</strong> Education and Training<br />
Policy team also proposes to<br />
incorporate the role of registered<br />
paralegal in future reviews of<br />
routes into the profession of<br />
solicitor, and fast-tracking which<br />
may be possible for registered<br />
paralegals, particularly where<br />
demand for traineeships may<br />
continue to exceed supply. <strong>The</strong>re<br />
will also be associated benefits<br />
of membership.<br />
What are the benefits to<br />
supervising solicitors?<br />
Whilst solicitors will retain overall<br />
responsibility for the work<br />
undertaken, they will be able to<br />
rely on the competence of a<br />
registered paralegal not only<br />
before they offer employment,<br />
but also in the course of<br />
individual transactions.<br />
Standards of competence and a<br />
code of conduct will be clearly<br />
articulated, as will the sanctions<br />
which can be imposed on a<br />
registered paralegal who falls<br />
short of the standard, or has a<br />
and CPD regime from September<br />
2011, there emerged a fresh<br />
opportunity to develop a final set of<br />
policy proposals for registered<br />
paralegals in line with overarching<br />
policy thinking on standards for<br />
trainee solicitors and CPD.<br />
So why consult again? We are<br />
operating in a markedly different<br />
market to that of summer 2008,<br />
and we know that recovery<br />
may take some years. In the<br />
interim, redundant<br />
paralegals may have<br />
embarked on further study<br />
to improve their<br />
employability in<br />
anticipation of market<br />
complaint upheld against them<br />
through the scheme.<br />
Is this the best option for<br />
paralegals and solicitors?<br />
Paralegal associations, the SPA<br />
and Society of Specialist<br />
Paralegals to name two, do often<br />
impose standards on their<br />
members in Scotland. <strong>The</strong> Society<br />
believes that regulation is the next<br />
step, and that integrating<br />
paralegal regulation and<br />
representation within its existing<br />
functions, is the most efficient<br />
and cost effective way forward.<br />
Who covers the cost<br />
of the scheme?<br />
Other than the initial outlays<br />
made to bring the scheme to<br />
fruition, the scheme is intended to<br />
be self-funding, and not funded<br />
through the practising certificate<br />
fee. It will be for those benefiting<br />
from it – registered paralegals,<br />
supervising solicitors and<br />
businesses employing both – to<br />
decide on payment of an annual<br />
£100 fee per registered paralegal.<br />
www.journalonline.co.uk
f paralegal<br />
recovery. Certainly, organisations<br />
delivering legal services have required<br />
to re-evaluate their business models<br />
and their positioning within the<br />
Scottish legal services market generally,<br />
to ensure their sustainability.<br />
A commitment from the Society to<br />
launch the registered paralegal<br />
scheme, in what remain challenging<br />
times, is therefore meaningful. <strong>The</strong><br />
consultation on the policy paper<br />
outlining the framework of the<br />
scheme, which reflects the market we<br />
are now in whilst holding to the<br />
principle that regulation of paralegals<br />
Comment from the SPA<br />
<strong>The</strong> Scottish Paralegal Association<br />
was formed in 1993 in response to<br />
the growth of the paralegal<br />
profession in Scotland. In the early<br />
days it was a challenge simply to<br />
obtain recognition of an additional<br />
tier which was neither legal<br />
secretary nor solicitor.<br />
Traditionally paralegals rose from<br />
the ranks of skilled legal secretaries.<br />
Today we also see paralegals<br />
entering the profession direct from<br />
college and university or<br />
transferring from other industries.<br />
As a result, paralegals in Scotland<br />
today work in a range of legal<br />
arenas from the traditional high<br />
street practice to in-house<br />
commercial concerns, government<br />
and financial institutions. You will<br />
find paralegals selling and<br />
purchasing your dream home,<br />
drafting wills or dealing with the<br />
estate of a loved one, settling<br />
disputes with your neighbour, or<br />
processing your remortgage.<br />
<strong>The</strong> SPA believes not only that<br />
paralegals should be promoted and<br />
gain the recognition they deserve,<br />
but that standards are an absolute<br />
necessity to our integrity and respect<br />
as an emerging profession. Standards<br />
to us mean firmly established<br />
membership criteria, a code of<br />
conduct, a grading structure, inoffice<br />
experience and the<br />
requirement to maintain CPD. Given<br />
the increasing use of paralegals in<br />
both the public and private sectors<br />
www.lawscotjobs.co.uk<br />
is essential, runs from 30 November<br />
2009 to 28 January 2010. It can be<br />
accessed at www.lawscot.org.uk/<br />
paralegals, or contact<br />
registeredparalegals@lawscot.org.uk<br />
for further information.<br />
<strong>The</strong> proposed launch in spring/<br />
summer 2010 will be a definitive step<br />
for the Scottish solicitor and paralegal<br />
professions. Please take the time to<br />
share your views.<br />
Collette Paterson is Deputy Director<br />
(Education and Training Policy) at the<br />
Law Society of Scotland<br />
we believe that it is in the best<br />
interests of paralegals, clients and<br />
employers as a whole that the person<br />
undertaking the provision of legal<br />
services ought to meet certain criteria<br />
and be regulated to ensure that the<br />
criteria are met.<br />
<strong>The</strong> Legal Services Bill has made<br />
proposals which will change the<br />
face of legal services in this<br />
country. It is not unrealistic to<br />
expect, in some areas at least, the<br />
emergence of services where there<br />
is one supervising solicitor to many<br />
paralegals. It is therefore all the<br />
more important that the person<br />
who is dealing with a transaction<br />
is regulated as competent, able<br />
and fit to do so.<br />
Delays as a result of the<br />
economic downturn have been<br />
unavoidable, but we are delighted<br />
to see our work with the Society, in<br />
developing the “Law Society of<br />
Scotland Registered Paralegal”<br />
scheme, proceeding with the final<br />
consultation. This is an opportunity<br />
to add your voice and views to the<br />
proposed scheme. It is important<br />
that we receive as many responses<br />
as possible from all interested<br />
parties to ensure that this scheme is<br />
fit for purpose and delivers what<br />
you expect.<br />
Karen Leslie and Alison Butters are<br />
practising paralegals and Joint<br />
Presidents of the Scottish Paralegal<br />
Association<br />
Guidance and<br />
rules from SLCC<br />
<strong>The</strong> Scottish Legal<br />
Complaints Commission<br />
(SLCC) has issued its first<br />
guidance to the<br />
professional bodies to<br />
ensure legal firms tell their<br />
clients about the SLCC at<br />
the earliest opportunity,<br />
and has also announced a<br />
change to its rules.<br />
<strong>The</strong> guidance states:<br />
“Practitioners should<br />
ensure that clients, or<br />
others, who may wish to<br />
express dissatisfaction<br />
with a practitioner or firm,<br />
should be advised of the<br />
SLCC as the appropriate<br />
gateway for complaints at<br />
an appropriate time.”<br />
SLCC Chair, Jane Irvine<br />
commented: “This may be<br />
when they issue a letter of<br />
engagement, or as a<br />
complaint arises, or at the<br />
point an internal complaint<br />
system concludes without<br />
resolution, but it is for the<br />
practitioners to determine<br />
the appropriate time.<br />
“We recognise the SLCC<br />
is a second tier complaint<br />
system and practitioners<br />
must have the opportunity<br />
to resolve complaints in<br />
the first instance – and we<br />
hope they continue to do<br />
this. We will, however,<br />
monitor how well<br />
practitioners are adhering<br />
to the guidance.”<br />
<strong>The</strong> SLCC wants to<br />
ensure that solicitors’<br />
firms and advocates<br />
inform their clients where<br />
to take their complaint if it<br />
cannot be resolved. It has<br />
asked the Society, the<br />
Faculty of Advocates and<br />
the Association of<br />
Commercial Attorneys to<br />
issue the guidance to their<br />
members so that every<br />
practitioner member has<br />
one point of reference for<br />
all professional guidance.<br />
SLCC rules have also<br />
been updated to reflect its<br />
experience of complaint<br />
handling over the last year.<br />
Whereas under the old rules<br />
it was mandatory that a<br />
complaint be dealt with by<br />
a practitioner before the<br />
SLCC would investigate it,<br />
the Commission will now, in<br />
exceptional circumstances,<br />
accept some complaints<br />
directly without the need for<br />
the practitioner to have first<br />
looked at them, for example<br />
where a serious allegation<br />
of misconduct is made.<br />
Ms Irvine said:<br />
“We feel this is a very<br />
important change for<br />
both consumers and<br />
practitioners as it<br />
recognises that there may<br />
be exceptional situations<br />
where further dialogue<br />
between them is not<br />
desirable.”<br />
First reported on<br />
www.journalonline.co.uk<br />
At the end of December or early in January the<br />
SLCC will publish its draft budget, levy and case fee<br />
structure for the year from 1 July 2010. <strong>The</strong> Society<br />
will be invited to comment in January/February.<br />
<strong>The</strong> Commission is keen to hear, not only from<br />
the professional bodies, but also individual<br />
members, and the Society also encourages<br />
members to express their views.<br />
Any members with observations or comments on<br />
the level of the levy, the categories and/or the<br />
individual case fees are asked to copy them to<br />
reg@lawscot.org.uk, so they can inform the<br />
Society’s own response.<br />
December 09 the<strong>Journal</strong> / 27
<strong>Professional</strong> news Society<br />
Law reform update<br />
Criminal Justice<br />
and Licensing Bill<br />
<strong>The</strong> Criminal Justice and<br />
Licensing Bill, currently at stage<br />
1, is wide ranging. <strong>The</strong> Society’s<br />
Criminal Law Committee has<br />
contributed to a number of<br />
consultations in relation to the<br />
bill, and in November it<br />
submitted written evidence. This<br />
commented on provisions<br />
relating to sentencing,<br />
community payback orders,<br />
serious organised crime, extreme<br />
pornography, prosecution of<br />
children, and evidence issues.<br />
<strong>The</strong> Mental Health and<br />
Disability Law Subcommittee<br />
has also contributed its views<br />
on the bill’s test for diminished<br />
responsibility, suggesting that<br />
a stronger volitional element<br />
be included.<br />
Notifications<br />
Entrance certificates<br />
Issued during October/November 2009<br />
ADAMS, John Paul<br />
ATLAS, Maria Lvovna<br />
BALLANTYNE, Ailidh Catherine<br />
BARR, Robert John<br />
BELL, Hilary Mary<br />
BIRSE, Mary McLaughlin<br />
BORROWMAN, Suzanne<br />
BROWNLEE, Thomas Richard<br />
BURGESS, Lindsey Margaret<br />
CHRISTIE, Morag Mary<br />
CLARK, Nicola Jane<br />
CORRIGAN, Sinead<br />
COWAN, Jennifer Scott<br />
CUMMING, Kenneth George<br />
CURRIE, Lucy Margaret<br />
DAVIS, Jennifer Rae<br />
DILASSER, Hollie<br />
DONNELLY, Stephen Philip<br />
DUNCAN, Sarah Jane<br />
ELDER, Lynsey<br />
FLEMING, Andrew James<br />
Graham<br />
FLEMING, David Alan<br />
FORMAN, Kimberley Leigh<br />
FORRESTER, Graeme Bruce<br />
FOTHERINGHAM, Alison<br />
Margaret<br />
FYFE, Helen Elizabeth<br />
28 / the<strong>Journal</strong> December 09<br />
Arbitration Bill<br />
<strong>The</strong> Arbitration (Scotland) Bill<br />
was passed on 18 November<br />
2009. <strong>The</strong> Society’s working<br />
party was very closely involved at<br />
all stages of the Scottish<br />
Government’s proposals and the<br />
subsequent development of the<br />
bill in the Parliament. Its expert<br />
arbitration lawyers included Neil<br />
Kelly, a partner at MacRoberts,<br />
who lent his considerable<br />
knowledge to scrutinise the bill<br />
and suggest a number of<br />
improvements.<br />
As a result of the bill’s<br />
passage, arbitrators will now<br />
have clear powers to grant<br />
remedies, make awards of<br />
interest and deal efficiently with<br />
questions of law. Parties will also<br />
have greater choice over how<br />
they choose to arbitrate and will<br />
GILL, Trudy Ann<br />
GORDON, Natalie Elizabeth<br />
GOTTS, Nicola Jane<br />
GRAY, Joanne Lauren<br />
GRAY, Richard William James<br />
GRAY, Ross<br />
HARDMAN, Jonathan Charles<br />
HARKESS, Gillian<br />
HEANEY, Zara Amber<br />
HENDERSON, Susan Janette<br />
HEPBURN, Thomas Clark<br />
HUNTER, Sarah Lynne<br />
JONES, Andrew Daniel<br />
KELLY, Nicola<br />
KER, Alan Duncan<br />
KING, Laura Amie<br />
KING, Louise Flockhart<br />
KNOX, Elizabeth<br />
Margaret Helen<br />
KOLETSOU, Lia<br />
LAKE, Jenna<br />
LAMB, Laura Anne<br />
LEONARD, Elouisa Margaret<br />
LYONS, Andrew David<br />
McCARRON, Eamonn John<br />
McCORQUODALE, Laura Anne<br />
McDADE, Lynne<br />
McGINLAY, Ross Maxwell<br />
McKECHNIE, Alison<br />
MACKENZIE, Jennifer<br />
McKERRELL, Katharine<br />
Elizabeth Seymour<br />
McKIBBEN, Louise Anne<br />
McMURCHIE, Lynn Lillian<br />
MAGUIRE, Michael James<br />
MARTYN, David Andrew<br />
MATHER, Katrina Elaine<br />
MATHESON, Alistair Martin<br />
MILLER, Collette Tracey<br />
MOIR, Jack<br />
MONTEITH, Jenna Alison<br />
MORRIS, Adelle<br />
MORRISON, John<br />
MOYES, Peter Stewart William<br />
MULHOLLAND, Tracey Louise<br />
MURDOCH, Edward Munroe<br />
NELLANY, Kirsty Jane<br />
NEWTON, James Kenneth<br />
NOBLE, Sophie Lucinda<br />
NORRIS, Louise Dorothy<br />
NORVAL, Robbie Stuart<br />
O’KANE, Siobhan Elizabeth<br />
PATERSON, Anthony<br />
John Paul<br />
PATERSON, Jennifer Gail<br />
PETRE, Oana-Iuliana<br />
have recourse to the courts in<br />
appropriate circumstances.<br />
Legal Services (Scotland) Bill<br />
<strong>The</strong> Society has submitted<br />
written evidence on the Legal<br />
Services (Scotland) Bill, which<br />
will allow solicitors the option of<br />
adopting an alternative business<br />
model to the traditional law<br />
firm. It welcomes the proposals<br />
while stressing that there must<br />
be sufficient protection for key<br />
principles. <strong>The</strong> Society has<br />
also been invited to give oral<br />
evidence on the bill on<br />
15 December.<br />
Home Owner and<br />
Debtor Protection<br />
<strong>The</strong> Society has submitted<br />
written and oral evidence on<br />
the Home Owner and Debtor<br />
Applications for admission<br />
October/November 2009<br />
ANDERSON, Victoria<br />
BAIRD, Iain<br />
BELL, Kerry<br />
BHATTI, Khurrum<br />
BROWN, Iain<br />
CLARK, Andrew<br />
CLARK, Dawn<br />
CONWAY, Aimee<br />
DOWNIE, Laura-Anne<br />
EDWARDS, Catherine<br />
EVERDEN, James<br />
HARDIE, Julie<br />
HORNE, Emma<br />
HOWARTH, Laura<br />
KERR, David<br />
QUINN, Jennifer<br />
READ, Kristin Elizabeth<br />
RYBITSKAYA, Evgeniya<br />
Leonidovna<br />
SINCLAIR, Corrine Mary<br />
SLATER, Calum William<br />
SLOAN, Edward Charles Paul<br />
SMITH, Barry Colin<br />
SMITH, Sarah Benedicte<br />
SUNDERLAND, Hannah<br />
TAIT, Andrea Laureen<br />
Protection (Scotland) Bill,<br />
currently at stage 1. It contains<br />
measures to protect debtors<br />
and increase protections for<br />
those facing bankruptcy. <strong>The</strong><br />
committee has expressed<br />
concerns about some of the<br />
provisions and at the lack of<br />
consultation on many of the<br />
provisions.<br />
Tax law update<br />
<strong>The</strong> Charity Law Subcommittee<br />
had a meeting with OSCR’s<br />
Chief Executive Jane Ryder, and<br />
senior legal adviser, Quentin<br />
Fisher on 16 November. <strong>The</strong><br />
main purpose of the meeting<br />
was to scope opportunities for<br />
increased engagement between<br />
OSCR and the profession and to<br />
establish how the Society can<br />
assist with this.<br />
McGLASHAN, Joanne<br />
McLENNAN, Raymond<br />
McQUEEN, Claire<br />
MANCHESTER, Gail<br />
MORRISON, John<br />
NELLANY, Rhona<br />
POULLAIN-KAY, Julian<br />
SEMBAY, Nicola<br />
SHARMA, Vaibhav<br />
THOMSON, Elizabeth<br />
THOMSON, Sarah<br />
VAN DER MERWE, Danielle<br />
WALLACE, Jennifer<br />
WILLMOTT, Simon<br />
YETTON, Peter<br />
THOMAS, Nicholas<br />
THOMPSON, Richard John<br />
THOMSON-McDERMOTT,<br />
Kate Helen<br />
TROTMAN, Rachel Davie Lee<br />
TIERNEY, Louise<br />
URQUHART, Jill Catherine<br />
WALKER, Sarah Kate<br />
WATSON, Victoria<br />
WELCH, Kirsty Anne<br />
WISHART, Alan Michael<br />
www.journalonline.co.uk
2009/2010<br />
Welcome<br />
to the Society’s Directory<br />
of Service Providers<br />
<strong>The</strong> Society’s Service Provider Scheme was set up in 2008<br />
to offer members a range of services and products that<br />
provide important and relevant support to legal businesses.<br />
Adding value to the high level of service already provided<br />
to clients is important for firms to help them stand out from<br />
the crowd and differentiate them from their competitors.<br />
<strong>The</strong> Society’s Service Provider Scheme is a source of<br />
reference to the many legal services and products solicitors<br />
increasingly depend on to operate effectively in today’s<br />
challenging marketplace. In many cases preferential rates<br />
have been negotiated by the Society and we hope you will<br />
be able to take advantage of these. Our recent Member<br />
Survey indicates that increasing numbers of members are<br />
using the services of companies in the Scheme. More<br />
details and links can be found on the Service Provider<br />
pages on the Society’s website at www.lawscot.org.uk<br />
Henry Robson,<br />
Deputy Chief Executive
Braemar Finance<br />
Develop your practice<br />
in 2010 with Braemar Finance<br />
We are a principal lender specialising<br />
in the professions.<br />
Cash is king and it makes sense to<br />
smooth your annual budget with<br />
instalment finance.We provide<br />
simple, tax-efficient finance solutions<br />
for many purposes.<br />
■ Partner’s equity<br />
■ Computer hardware & software<br />
upgrades<br />
■ Interim funding on phased projects<br />
Company Net<br />
Company Net is one of Scotland’s<br />
leading software business<br />
consultancies – delivering business<br />
focused solutions to clients for<br />
over 13 years.<br />
■ KnowledgePoint:<br />
Knowledge Management<br />
for Scots Law<br />
KnowledgePoint enables legal<br />
professionals to more efficiently<br />
search, store and share knowledge,<br />
within a branded company intranet.<br />
■ Office development<br />
■ Office equipment<br />
■ Cars<br />
■ Tax*<br />
For a personal service contact us on<br />
01563 852100 or visit<br />
www.braemarfinance.co.uk<br />
* Arrange a tax loan facility now to cover<br />
your January tax bill<br />
KnowledgePoint provides a single<br />
point of access to all the information<br />
you need, from internal documents to<br />
online subscription services. Finding<br />
information is quicker; centralising<br />
and managing styles is more<br />
efficient; sharing company<br />
knowledge is simpler.<br />
To find out more about KnowledgePoint<br />
for your business, contact James Freel on<br />
James.Freel@Company-Net.com or visit<br />
us on www.company-net.com<br />
BUSINESS SERVICES AND OFFERS<br />
Cigna<br />
Healthcare<br />
CIGNA’s medical and dental plans can<br />
help you deliver effective and valued<br />
health benefits to your employees.<br />
Medical insurance can help<br />
employees avoid the delays<br />
experienced when accessing NHS<br />
treatment, giving them a choice in<br />
where and when they’re treated.<br />
Whether it’s about attracting and<br />
retaining key employees with a<br />
comprehensive plan, or preventing<br />
absences in a cost effective way with<br />
a budget plan – our modular design<br />
offers an option for all.<br />
Hertz Car Hire<br />
Would you like to spend less money<br />
on car rentals and more money on<br />
your holiday?<br />
As a member of the Law Society<br />
of Scotland, Hertz welcomes you to<br />
the member benefit programme,<br />
which means great savings and<br />
offers every time you book a car<br />
with Hertz.<br />
Here are some of the benefits that<br />
you can enjoy:<br />
■ 5% off our best available retail<br />
rates when you book.This includes<br />
discount off our great value<br />
prepaid rates as well<br />
Dental insurance can ease the<br />
worry of finding a dentist and offers<br />
the peace of mind that routine and<br />
unforeseen dental procedures are<br />
covered.<br />
If you’re buying health benefits for<br />
the first time or want to review<br />
existing arrangements, we’d be<br />
delighted to help.<br />
For more information contact us on<br />
01475 788753 or email us at<br />
sme.ss@cigna.com. Visit<br />
www.cigna.co.uk<br />
■ Exclusive savings on worldwide car<br />
hire<br />
■ Special money-off vouchers,<br />
upgrade coupons and other<br />
promotional offers from time to<br />
time during the year<br />
■ Save time and money with Hertz<br />
#1 Club membership<br />
Remember every time you reserve to<br />
quote booking reference: CDP 545637.<br />
What’s more, booking couldn’t be<br />
simpler – either online on the Society’s<br />
Service Provider web pages OR via the<br />
Hertz Member Benefit Programme<br />
hotline: 0870 844 4844
2009/2010<br />
Kirklands<br />
Stress-free Compliance<br />
with the Accounts Rules<br />
3 reasons why a growing number of<br />
commercially savvy firms are opting<br />
for our Bureau Cashroom Service as<br />
advertised on the Law Society of<br />
Scotland website:<br />
1. Low startup costs: Setup<br />
costs from £500 + VAT.We supply<br />
everything.All you need is a<br />
broadband line and PC.<br />
2. Low monthly costs:<br />
Several of our smaller firms are paying<br />
less than £250 per month for a<br />
complete cashroom service.You only<br />
pay for the time our SOLAS trained<br />
cashiers spend on your accounts.<br />
3. Zero staff, training or<br />
software costs. You use our<br />
software and SOLAS trained cashiers<br />
so you do not have any staff, training<br />
or software costs.<br />
A number of our existing clients have<br />
kindly volunteered to discuss how they<br />
find the service and the difference it has<br />
made to their businesses. For further<br />
information please see the Law Society<br />
website or call Graham Gibson on<br />
01738 44 2299 (Ext 704)<br />
Landmark<br />
Information Group<br />
Forgotten, but not gone – introducing<br />
a revolution in financial asset searching<br />
With an estimated £15 billion worth<br />
of unclaimed assets in the UK, it<br />
might seem surprising that such huge<br />
sums are lying unclaimed. But it’s<br />
easy for individuals to lose track of<br />
their financial assets.<br />
As a consequence it is almost<br />
impossible for probate lawyers acting<br />
as an executor and/or assisting<br />
personal representatives to be<br />
confident that they have captured<br />
the entire estate.<br />
Landmark FAS is a<br />
groundbreaking online financial asset<br />
search tool designed to aid probate<br />
practitioners with their search<br />
obligations. Our relationship with a<br />
wide range of UK financial<br />
institutions enables us to deliver a<br />
full report, covering key financial<br />
assets, within 28 days. Landmark FAS<br />
makes searching for financial assets<br />
an efficient, comprehensive and<br />
simple process.<br />
Visit www.landmarkfas.co.uk
Mercedes-Benz UK<br />
Mercedes-Benz is proud to be a<br />
service provider to the Law Society of<br />
Scotland. Members can benefit from<br />
exclusive offers on new Mercedes-<br />
Benz cars, both private and fleet<br />
purchases. Our range starts with the<br />
A-Class from £14,290.<br />
New C-Class engines offer low<br />
CO 2 emissions from 127 g/km and<br />
fuel consumption of up to 58.9 mpg.<br />
<strong>The</strong> new E-Class range also<br />
■ NEXT DAY PRE-9am MAIL SERVICE<br />
■ HALF THE PRICE OF ROYAL MAIL<br />
■ A MAIL SERVICE YOU CAN RELY ON<br />
■ VARIOUS MEMBERSHIP OPTIONS<br />
■ OPEN TO ALL BUSINESS SECTORS<br />
■ TRACKED MAIL SERVICES<br />
Call Alan MacDonald on 01383 826726<br />
or visit the LP website via www.firstscottish.com<br />
benefits from BlueEFFICIENCY<br />
technology, part of our journey to<br />
emission free driving, without<br />
compromising performance.<br />
Our retailers would be delighted to<br />
assist with any queries, including<br />
demonstration and brochure requests.<br />
Please visit: www.mercedes-benz<br />
corporate.co.uk/lawsocietyscotland<br />
or call 0870 600 1586<br />
BUSINESS SERVICES AND OFFERS<br />
Make it Cheaper<br />
New: free energy contract<br />
checking service from Make it Cheaper<br />
Businesses can now discover the<br />
earliest date they can switch energy<br />
supplier and how much they can save<br />
in doing so.<br />
Make It Cheaper, the independent<br />
price comparison expert has<br />
launched a free Business Energy<br />
Contract Checking Service to combat<br />
the problem of companies being<br />
locked into expensive tariffs because<br />
their supplier only permits switching<br />
in narrow renewal windows.<br />
Make It Cheaper will carry<br />
out all the necessary checks to<br />
establish the supplier, meter<br />
numbers, annual consumption,<br />
contract end dates, when the<br />
renewal window opens and the<br />
best tariffs for each business.<br />
To make sure you don’t miss your<br />
opportunity to save: call 0800 970 2346<br />
or visit www.makeitcheaper.com/lawsociety-of-scotland
2009/2010<br />
Scottish<br />
Widows Bank<br />
<strong>Professional</strong> Mortgage<br />
If you’re looking to buy a new home<br />
or remortgage your existing one, then<br />
take a look at Scottish Widows<br />
Bank’s <strong>Professional</strong> Mortgage. It’s<br />
available to qualified, registered and<br />
practising solicitors and trainee<br />
solicitors.You could borrow up to<br />
85% of the value or purchase price<br />
(whatever is lower), and use flexible<br />
payment features such as our free<br />
offsetting facility.With our simple<br />
offset facility, you can either reduce<br />
<strong>The</strong> Family<br />
Protection Bond<br />
Solicitors across Scotland are helping<br />
their clients make funeral<br />
arrangements in advance as an<br />
essential part of will writing and<br />
wider estate planning services, and<br />
many of them are doing so by<br />
offering the Family Protection Bond<br />
from Golden Charter.<br />
Guaranteeing to cover all funeral<br />
director’s services, and significantly<br />
contribution to other costs associated<br />
with a funeral, the Family Protection<br />
Bond protects your clients from the<br />
your monthly payment OR potentially<br />
the term of your mortgage, whatever<br />
is best for you.<br />
See if we can help. For more<br />
information call us on 0845 845 0829<br />
quoting Law Society of Scotland.<br />
Visit www.scottishwidowsbank.co.uk<br />
YOUR HOME MAY BE REPOSSESSED<br />
IF YOU DO NOT KEEP UP<br />
REPAYMENTS ON YOUR MORTGAGE<br />
rising costs of funerals, and spares<br />
their families the burden of<br />
bereavement.<br />
Call Michael Corish today on<br />
0141-931-6311 to order a Family<br />
Protection Bond Starter Pack for your<br />
firm today!<br />
www.familyprotectionbond.co.uk<br />
Stewart Title Ltd<br />
Stewart Title Limited is a UK title<br />
insurance company regulated by the<br />
FSA. As a wholly owned subsidiary<br />
of Stewart Title Guaranty Company,<br />
Stewart Title Limited is the primary<br />
underwriter for European<br />
transactions.<br />
Stewart Title Limited’s operations<br />
in Scotland are based in Strathclyde<br />
Business Park, Lanarkshire.<br />
We provide title insurance<br />
specifically through solicitors for<br />
owners and lenders including:<br />
■ Bespoke Policies for defective titles<br />
encompassing a full range of title<br />
risks<br />
■ Self Certification Policies for<br />
straightforward risks<br />
T.M.Lewin<br />
Dedicated to dressing the business<br />
community,T.M.Lewin boast the<br />
largest range of shirt sizes for perfect<br />
comfort, as well as the greatest<br />
number of styles, so individual choice<br />
and relative exclusivity is guaranteed.<br />
Add to these a quality range of<br />
suits for both men and women and a<br />
wide range of accessories including<br />
beautiful silk ties and hand crafted<br />
cufflinks and you can see why we are<br />
the preferred choice within the legal<br />
sector.As Oscar Wilde famously<br />
stated “You never get a second<br />
chance to make a first impression”.<br />
■ Commercial and Residential Policies<br />
■ Policies for residential and<br />
commercial remortgages<br />
■ <strong>Online</strong> systems to facilitate quicker<br />
and cost effective ordering<br />
Stewart Title employs experienced<br />
and legally qualified underwriters<br />
who have the knowledge required of<br />
the Scottish market together with<br />
efficiency and dedication.<br />
Stewart Title is recognised as having<br />
an exceptionally strong capacity to<br />
meet policy holder and contract<br />
obligations and has thus received a<br />
rating of A from Fitch Ratings.<br />
For more information, go to<br />
www.stewarttitle.co.uk<br />
Our Corporate Discount Scheme<br />
was the first of its kind among<br />
shirtmakers and is now a firm<br />
favourite with legal professionals,<br />
offering exclusive discounts on the<br />
individual shirt prices seen in the<br />
High Street as well as other seasonal<br />
special offers.<br />
Call to Action: Visit our Society Page to see<br />
the latest offer voucher. In-stores – take<br />
the voucher to claim the prices quoted.<br />
<strong>Online</strong> – Shop at www.tmlewin.co.uk<br />
and enter promotional code SCLAW<br />
before making payment
Trustis<br />
Smartcard Reader<br />
Law Society of Scotland members are<br />
able to take advantage of a special<br />
deal for Trustis smart card readers for<br />
use with Registers of Scotland<br />
Automated Registration of Title to<br />
Land (ARTL).<br />
<strong>The</strong>re are several benefits of<br />
purchasing this product:<br />
■ It has been tested with ARTL and<br />
the Registers of Scotland<br />
smartcards.<br />
■ It will be delivered with ARTL<br />
specific installation and use<br />
instructions co-written by the<br />
How to join the Service<br />
Provider Scheme<br />
Registers of Scotland together<br />
with troubleshooting FAQs, web<br />
links and telephone helpline<br />
numbers.<br />
■ It is provided by Trustis, supplier of<br />
both the smart cards and readers<br />
<strong>The</strong> product can be purchased for<br />
£27 + £2.95 P&P (plus VAT) per unit<br />
including delivery.<br />
Visit https://cardreader.trustis.com to<br />
purchase the product. For more<br />
information on ARTL, please visit<br />
www.ros.gov.uk/artl<br />
<strong>The</strong> Service Provider Scheme is open to businesses that have services or<br />
products suitable for the legal market, and is an ideal platform for those<br />
wishing to communicate to Law Society Members.<br />
Participants in the scheme can take advantage of a range of marketing<br />
opportunities such as:<br />
■ a dedicated business webpage on the Society’s website<br />
■ Use of the Service Provider Scheme logo<br />
■ Preferential rates for advertising, exhibitions and sponsorship<br />
■ Subscription to the <strong>Journal</strong> magazine and Society e-zine<br />
If you are interested in joining the scheme, please contact Carly<br />
Svendsen on 0131 476 8166 or email carlysvendsen@lawscot.org.uk<br />
BUSINESS SERVICES AND OFFERS<br />
2009/2010<br />
Please note that the listings within this section do not constitute or imply endorsement or recommendation by <strong>The</strong> Law Society of Scotland, nor any representation by the<br />
Society as to the performance or suitability of any of the advertised products or services. It is the responsibility of members and firms to ensure that the relevant products or<br />
services meet their requirements and to negotiate directly with the Service Provider, on terms and costs before making any commitment to the advertised products/services.
<strong>Professional</strong> practice Networking sites<br />
Have you been invited to join a<br />
business networking site such as<br />
LinkedIn? Do you know how to<br />
use these sites to win new work?<br />
Adam Gordon reveals more<br />
Lawyers<br />
can network too<br />
<strong>The</strong> internet has totally changed the<br />
way many of us live our lives. We buy<br />
shopping online and we use the net<br />
to peruse potential holiday<br />
destinations, cars, houses and jobs<br />
before making pretty much every<br />
major purchase or life decision. We<br />
may use Facebook to keep in touch<br />
with friends, Twitter to find out what<br />
our favourite personalities have been<br />
doing, and so on. Most of us have<br />
busy online lives.<br />
I know many lawyers who use the<br />
net for research, storing documents<br />
and many other elements of their<br />
professional work. But how many are<br />
using the opportunities now afforded<br />
to them for demonstrating their<br />
expertise, making new contacts and<br />
winning work?<br />
From the Harvard Review to the<br />
McKinsey Quarterly, all the reputable<br />
commentators have been talking<br />
about the openings available to<br />
professionals from using the<br />
business-focused networking sites like<br />
Xing, Naymz and LinkedIn.<br />
Exponential growth<br />
<strong>The</strong> popularity of these sites is<br />
phenomenal. Social networking sites<br />
make it easy for people to create a<br />
profile about themselves and use it to<br />
build a virtual network of their offline<br />
professional contacts and to make<br />
new ones online.<br />
According to online statistics<br />
company Compete Inc, in September<br />
36 / the<strong>Journal</strong> December 09<br />
this year LinkedIn had 15,051,069<br />
unique visitors compared to around<br />
8,000,000 per month at the same<br />
time last year. This growth is<br />
explosive.<br />
Marketing on these sites can be<br />
tricky because online communities<br />
hate blatant commercial messages.<br />
However, there are plenty of ways in<br />
which lawyers can and do benefit.<br />
So why is it useful? According to<br />
one lawyer I know, Julian Johnstone,<br />
head of litigation at Druces LLP in<br />
London: “Well, for research for one –<br />
as a lawyer my job is selling legal<br />
services and from LinkedIn I can<br />
easily find the identities of the<br />
purchasers of legal services by joining<br />
groups and carrying out searches. I<br />
have information from such profiles<br />
that I would not otherwise have.<br />
“Secondly, it’s a good way of<br />
cementing an approach or following<br />
up and then maintaining contact<br />
thereafter, used in conjunction with<br />
more traditional methods.”<br />
Opening doors<br />
Julian also cites LinkedIn as an<br />
excellent way of creating contacts<br />
amongst potential referrers, and has<br />
even formed a LinkedIn group for<br />
sociable lawyers to connect with each<br />
other, the purpose being to<br />
encourage “meet-ups” when one is in<br />
another’s area on business. This<br />
group was set up in September and<br />
already has over 100 members, so<br />
“I have<br />
information<br />
from such<br />
profiles that<br />
I would not<br />
otherwise<br />
have. Secondly,<br />
it’s a good way<br />
of cementing<br />
an approach or<br />
following up<br />
and then<br />
maintaining<br />
contact”<br />
there is plenty of participation.<br />
He is not the only lawyer putting<br />
these tools to good use. I know of<br />
lawyers who have hired people to<br />
their teams, appointed new suppliers<br />
and won new clients through their<br />
LinkedIn activities.<br />
<strong>The</strong> use of these tools<br />
demonstrates a firm’s or individual’s<br />
technical “savvy”, which potentially<br />
suggests the client experience will be<br />
slick. <strong>The</strong>re is a certain novelty to<br />
some of these applications, and<br />
many will become fads. However, in<br />
our experience, their usage induces a<br />
sense of curiosity in prospective<br />
clients. One large firm I know in<br />
Birmingham had tried every method<br />
possible to entice a significant local<br />
plc into acknowledging them,<br />
without success. When one of their<br />
partners connected with the CFO<br />
directly on LinkedIn, however, the<br />
beginnings of a relationship had<br />
formed and a subsequent “coffee”<br />
was arranged.<br />
All good sense<br />
Here are a few of the key things you<br />
need to consider if you are to trial or<br />
embed social networking into your<br />
marketing efforts:<br />
Create a compelling profile – include<br />
examples of benefits you’ve afforded<br />
your clients. Prospects are then much<br />
more likely to find you when they are<br />
searching for a specialist.<br />
Target a specific audience – there is<br />
www.journalonline.co.uk
no point in connecting with people<br />
and joining communities which are<br />
not going to be of any relevance to you.<br />
Add lots of links – to your firm’s<br />
website home page, to relevant pages<br />
about your specialist area and any press<br />
comment about you or your teams.<br />
Get involved – there are some<br />
excellent groups out there. If you’re an<br />
employment specialist, for example,<br />
join and contribute to groups where<br />
HR professionals get together to<br />
discuss their community’s issues.<br />
Be a thought leader – create<br />
content that expresses your informed,<br />
expert views and connect your<br />
contacts with these. Don’t tell your<br />
contacts that you’re the best banking<br />
lawyer in town – prove it by starting<br />
and controlling the conversation.<br />
Make contacting you easy – I know<br />
decision-makers who have contacted<br />
one lawyer over another simply<br />
because their mobile phone number<br />
was to hand. Ensure your profile<br />
readily offers your direct dial, mobile<br />
number and email address.<br />
And finally, it’s worth remembering<br />
that there are no experts and no rules<br />
for the use of online professional<br />
networks. <strong>The</strong>ir use in professional<br />
services is too new. So the best advice<br />
on taking advantage of the new<br />
opportunities the internet is<br />
presenting lawyers in winning work<br />
is, do what feels right and use your<br />
common sense.<br />
Adam Gordon is Director of business<br />
development consultancy Gordon BDM<br />
Ltd, Glasgow. www.winningwork.co.uk<br />
[Editor’s note: This article came about after I<br />
responded to an invitation to join Adam<br />
Gordon’s LinkedIn group]<br />
www.lawscotjobs.co.uk<br />
Don’t miss<br />
in this<br />
section<br />
Business<br />
networking sites<br />
36<br />
Ash Ash: Advice<br />
column<br />
37<br />
IT: Service via<br />
Facebook<br />
38<br />
Risk management:<br />
Communication<br />
40<br />
<strong>Professional</strong> practice Advice<br />
AskAsh<br />
An assistant leaving to work at another firm<br />
wonders how honest they should be during<br />
their exit interview, about negative experiences<br />
involving their present boss<br />
Dear Ash,<br />
I have handed in my notice at my<br />
current job in a medium sized firm.<br />
I’m moving to a better paid job<br />
with more responsibility and<br />
money and I couldn’t be happier.<br />
My dilemma is whether I should be<br />
truly honest about my experiences<br />
at my current firm when I have my<br />
exit interview. My time at the firm<br />
has not always been very pleasant;<br />
in particular my boss has, in the<br />
past, been quite nasty and indeed<br />
took great pleasure in poking fun<br />
at me in front of other colleagues<br />
as well as clients. I feel I should let<br />
the HR department know what my<br />
boss is really like, but I am not sure<br />
whether this may have future<br />
repercussions as the legal world is<br />
relatively small.<br />
ASH replies:<br />
<strong>The</strong> purpose of an exit interview is<br />
effectively to allow a company to<br />
know why its employees are<br />
choosing to leave and to try to<br />
improve on working conditions for<br />
the future in order to encourage<br />
employee retention. That is the<br />
theory anyway. In reality many<br />
employees feel reluctant about<br />
openly speaking about their<br />
experiences as there is a sense of<br />
fear about whether it will be used<br />
against them in future, therefore<br />
the effectiveness of such interviews<br />
is questionable.<br />
I personally believe that it is<br />
important to be honest about<br />
your experiences. However,<br />
although you should relay<br />
how you felt about being treated<br />
in a particular manner and indeed<br />
give examples, it is important to<br />
still retain a certain degree of<br />
decorum and professionalism –<br />
i.e. do not be tempted to call<br />
your boss any names during<br />
the conversation!<br />
Also bear in mind, being honest<br />
about your experiences does not<br />
mean that you have to merely<br />
focus upon the negatives: also<br />
speak about the good times you<br />
had at the firm. It is important that<br />
you provide a balanced picture<br />
about your experiences as this will<br />
give more credence to what you<br />
are saying and will demonstrate to<br />
the listener that you are not just a<br />
disgruntled employee with a chip<br />
on their shoulder.<br />
“Ash” is a solicitor who is willing<br />
to answer work-related queries from<br />
solicitors and trainees, which can<br />
be put to her via the editor:<br />
peter@connectcommunications.co.uk<br />
or by mail to Studio 2001, Mile End,<br />
Paisley PA1 1JS. Confidence will be<br />
respected and any advice published<br />
will be anonymised.<br />
Please note that letters to Ash are not<br />
received at the Law Society of Scotland. <strong>The</strong><br />
Society offers a support service for trainees<br />
through its Education and Training<br />
Department. For one-to-one advice contact<br />
Education and Training Manager Katie<br />
Meanley on 0131 476 8105/8200, or<br />
KatieMeanley@lawscot.org.uk .<br />
December 09 the<strong>Journal</strong> / 37
<strong>Professional</strong> practice IT<br />
Welcome, user!<br />
(and you’re sued)<br />
<strong>The</strong> digital age has now seen court actions in other jurisdictions being raised via<br />
the Facebook networking site, where defendants have proved difficult to trace.<br />
Nicola Shiels suggests that Scotland should make efforts to catch up<br />
Developments in information<br />
technology (IT) over the past few<br />
decades have enabled a vast amount<br />
of information to be quickly<br />
exchanged as a matter of course. For<br />
many people, working methods in<br />
academia, practice and in everyday<br />
life have dramatically adapted. This<br />
article is a case in point: it was<br />
researched online and written and<br />
submitted without recourse to<br />
pen or paper. As an<br />
increasing amount of time<br />
– and money – is spent<br />
online, as lawyers it is<br />
worth pausing for a<br />
moment to consider how<br />
the law fits into this<br />
equation.<br />
38 / the<strong>Journal</strong> December 09<br />
Recent cases involving court<br />
practice rules and electronic service<br />
of documents from the southern<br />
hemisphere offer an interesting<br />
insight into what might be to come<br />
in this particular aspect of law and<br />
technology. <strong>The</strong> examples that<br />
follow demonstrate the<br />
advancements being made in some<br />
jurisdictions, where existing court<br />
rules have already been interpreted<br />
in light of modern IT use.<br />
Australia<br />
Over the past year or so in Australia,<br />
there have been at least two cases in<br />
which permission was sought for<br />
service of documents via Facebook.<br />
Unfortunately there is no public<br />
judgment available in either case,<br />
although both were considered in a<br />
recent article, Joanne Drane: “Are the<br />
English Courts Ready for Service<br />
through Facebook?” (2009) 30<br />
BLR 80, as well as in various press<br />
articles. It is worth looking at each<br />
case in a little more detail to find<br />
out what might one day be the<br />
case in Scotland.<br />
Citigroup v Weekaroon<br />
In Citigroup Plc Ltd v Weekaroon<br />
[2008] QDC 174 (16 April<br />
2008), an application was<br />
made in Queensland<br />
District Court for<br />
substituted service of a<br />
statement of claim on a<br />
defendant, i.e. service by<br />
means other than those set<br />
out in the applicable rules,<br />
subject to certain restrictions.<br />
<strong>The</strong> substituted service was via<br />
a private message over<br />
Facebook – a function which,<br />
like an email, enables a message to be<br />
privately sent to an inbox.<br />
For those not part of the 300 million<br />
(and counting) Facebook users, it<br />
might be worth pausing to explain the<br />
basics. A Facebook account can easily<br />
be set up by registering online. After<br />
registration, a webpage belonging to<br />
the account holder is created. That page<br />
– or certain aspects of it – may be made<br />
visible to others, depending on the<br />
level of privacy selected by the owner.<br />
However, the account contains other<br />
areas, such as an inbox, which are<br />
private and require a password.<br />
In any event, the application<br />
was rejected because it could not<br />
be proved who the page belonged to.<br />
In fact, in a number of instances<br />
involving celebrities, Facebook<br />
accounts have been set up in the<br />
names of others. In the next Australian<br />
case, the identity of the two account<br />
holders was easier to verify because<br />
they were linked to each other online.<br />
MKM Capital Property<br />
v Corbo and Poyser<br />
In MKM Capital Property Ltd v Corbo and<br />
Poyser, ACT Sup Ct, 12 December 2008<br />
(No SC 608 of 2008), MKM, a lending<br />
company, obtained default judgment<br />
against two defendants. <strong>The</strong> company<br />
seemed to go to considerable lengths to<br />
reach the defendants, but still<br />
experienced difficulty serving the<br />
default judgment using traditional<br />
methods. MKM’s lawyers then<br />
discovered that both defendants had<br />
active Facebook profiles, and that they<br />
were “friends” with one another. Again,<br />
by way of explanation, on Facebook an<br />
individual has “friends”, who might in<br />
real life be relatives, partners or<br />
colleagues. Depending on the chosen<br />
www.journalonline.co.uk
privacy settings, it might be possible to<br />
tell who an individual’s Facebook<br />
friends are. In this case, the friends list<br />
of both defendants was visible.<br />
<strong>The</strong> lawyers sought permission in<br />
the Australian Capital Territory<br />
Supreme Court for default judgment<br />
to be served on both defendants via<br />
Facebook. An application for<br />
substituted service was made, and<br />
granted. What is different in this case<br />
is the extent to which the lending<br />
company’s lawyers were able to show<br />
that the Facebook profiles were those<br />
of the defendants. <strong>The</strong> lawyers<br />
demonstrated that these profiles listed<br />
various personal details, such as their<br />
dates of birth, which were known to<br />
the lending company. Neither<br />
defendant had used any of the various<br />
privacy settings, which would have<br />
restricted the outside world’s access to<br />
their pages. In fact, many Facebook<br />
users do not change privacy options<br />
from the (rather lax) default setting.<br />
Finally, because Australian court<br />
rules already made provision for<br />
electronic service of documents, service<br />
via messages broadly equivalent to<br />
email was arguably a logical extension<br />
of those rules, particularly when both<br />
email and Facebook messages are<br />
private. In granting the application, the<br />
judge in the MKM case even stipulated<br />
that the documents were to be served<br />
privately, which rules out the option to<br />
post anything on the defendants’<br />
“walls” – the Facebook equivalent of a<br />
public noticeboard.<br />
New Zealand<br />
In New Zealand too, one case saw a<br />
plaintiff seeking to use Facebook to<br />
serve papers on an apparently<br />
unreachable defendant.<br />
Axe Market Garden Ltd v Axe<br />
In Axe Market Garden Ltd v Axe, High<br />
Court of New Zealand in Wellington,<br />
CIV-2008-485-002676, a plaintiff<br />
sought to serve papers on a<br />
defendant who was abroad and out<br />
of reach. Again, no official<br />
judgment is available and the<br />
outline of the case has been taken<br />
from press reports. According to<br />
those reports, the plaintiff (a<br />
company headed by the father of one<br />
of the defendants) claimed the<br />
defendant had unlawfully taken<br />
money from the firm’s bank account.<br />
Ordinary service on the defendant had<br />
proved impossible and so the plaintiff<br />
sought an order to enable papers to be<br />
served on the defendant via Facebook.<br />
Here, the relationship between the<br />
plaintiff and defendant made it even<br />
easier to assert and prove the identity<br />
www.lawscotjobs.co.uk<br />
fyi<br />
<strong>The</strong> summary<br />
cause rules permit<br />
certain documents in<br />
electronic form,<br />
but subject to<br />
exclusions<br />
of the recipient of the documents. In<br />
fact, father and son had apparently<br />
been in regular contact via Facebook<br />
after the son moved to England. <strong>The</strong><br />
application was successful. Again, the<br />
New Zealand High Court Rules<br />
(available at www.legislation.govt.nz)<br />
already made provision for electronic<br />
service of documents in specific<br />
circumstances. For any forms of service<br />
more publicly visible or accessible, the<br />
question remains whether that service<br />
would fall within the provisions<br />
relating to electronic service.<br />
In both Australia and New<br />
Zealand, then, a pragmatic approach<br />
has been taken to interpreting rules<br />
on substituted service within the<br />
context of electronic capabilities, as<br />
well as the likelihood of those being<br />
served using various means of IT. In<br />
Scotland, just as in those countries,<br />
many individuals make regular use of<br />
Facebook. It is interesting to consider<br />
what might happen in a civil case if<br />
service of documents was attempted<br />
in a similar manner in these islands.<br />
<strong>The</strong> United Kingdom<br />
<strong>The</strong>re seem to have been no cases in<br />
point in Scotland, but in ordinary<br />
cause procedure there are currently<br />
no provisions for serving documents<br />
electronically. In summary cause<br />
procedure certain documents may be<br />
lodged, intimated or sent in<br />
electronic form, whether by email “or<br />
similar means”. However, a certificate<br />
of execution of service, citation or<br />
arrestment and a decree or extract<br />
decree of the court are all excluded<br />
from this provision. It seems, then,<br />
that the scope for electronic service of<br />
documents is limited under general<br />
civil procedure rules. <strong>The</strong> position<br />
might well be different in more<br />
specific areas of law.<br />
In England & Wales, a claim form<br />
and other documents may be served<br />
by fax and other electronic means<br />
where the party being served, or their<br />
solicitor, has previously indicated in<br />
writing their willingness to accept<br />
service in that way. <strong>The</strong> Practice<br />
Direction which accompanies the<br />
relevant part of the Civil Procedure<br />
Rules (CPR Practice Direction 6) sets<br />
out what circumstances constitute the<br />
“sufficient written indication”<br />
required. When users sign up to social<br />
networking sites, however, they do<br />
not seem to give sufficient written<br />
indication that they accept service. It<br />
is therefore unlikely that the rules<br />
may be interpreted to allow for<br />
service by Facebook. However, it is<br />
still possible for a party serving to<br />
apply for substituted service.<br />
This demonstrates that, despite the<br />
updated rules, there are limits to the<br />
way in which rules can keep up with<br />
advances in technology and, much as<br />
we have seen in the earlier cases from<br />
Australia and New Zealand, the first<br />
case for service of documents over<br />
Facebook in England & Wales is likely<br />
to be based an application for<br />
substituted service rather than the<br />
rules providing for electronic service.<br />
It is likely that the rate of<br />
technological advance will increase<br />
exponentially over the years to come<br />
and, at the moment, it does not<br />
appear that civil procedure rules in<br />
Scotland may be interpreted in a way<br />
which takes these advances into<br />
account. Electronic service might<br />
become more important as<br />
individuals move around more:<br />
regardless of which country someone<br />
lives in at any particular time, their<br />
email address – or Facebook account<br />
– are likely to remain the same. If<br />
there are further postal difficulties<br />
then electronic service might really<br />
come into its own.<br />
<strong>The</strong> cases discussed in this short<br />
piece demonstrate how rules<br />
elsewhere are being reinterpreted,<br />
perhaps even reshaped, by<br />
technological advances which could<br />
not have been predicted a generation<br />
or so ago. Those advances affect<br />
individuals regardless of where they<br />
live, but what is different is how a<br />
legal system adapts to those<br />
advances. It is worth asking whether<br />
Scotland’s current rules are able to<br />
adapt and remain fit for purpose in<br />
this modern era, or whether we<br />
already need to catch up.<br />
Nicola Shiels, Scottish Government<br />
Legal Directorate.<br />
(Any view expressed is my own personal<br />
opinion and not that of the Scottish Government<br />
Legal Directorate.)<br />
What is different in this case is the extent<br />
to which the lending company’s lawyers<br />
were able to show that the Facebook<br />
profiles were those of the defendants<br />
December 09 the<strong>Journal</strong> / 39
<strong>Professional</strong> practice Risk management<br />
Communication failures are a significant factor in the experience of claims against<br />
solicitors, and more effective communication could reduce significantly the<br />
incidence of claims in all areas of practice, says Alistair Sim of Marsh<br />
Communication,<br />
communication,<br />
communication<br />
Many complaints, disputes, claims<br />
and other problems<br />
boil down to<br />
misunderstandings,<br />
so it is little<br />
surprise to learn<br />
that poor or<br />
ineffective<br />
communication lies<br />
at the root of many<br />
claims made against<br />
solicitors. Reports indicate<br />
that the most frequent cause<br />
of service complaints is<br />
communication breakdown.<br />
Perhaps as many as a third<br />
of all Master Policy<br />
intimations may be attributed<br />
to a breakdown in<br />
communication or a<br />
misunderstanding of some sort.<br />
Many claims involve a factual<br />
disagreement between solicitor and<br />
client. Many involve allegations of<br />
failure to inform, advise or warn.<br />
A challenge<br />
Are you confident that<br />
misunderstandings could not<br />
arise between you and your<br />
clients? Are you sure that<br />
neither you nor your clients are<br />
proceeding on the basis of an<br />
incorrect assumption about a key<br />
aspect of the transaction? How can<br />
you be confident?<br />
<strong>The</strong> following series of case studies<br />
illustrates the potential for<br />
misunderstandings and incorrect<br />
assumptions. <strong>The</strong>y also demonstrate<br />
the scope for addressing these<br />
communication risks by ensuring key<br />
points are effectively communicated<br />
and recorded.<br />
40 / the<strong>Journal</strong> December 09<br />
Case study 1<br />
Practice A acted for Mr Brown in a<br />
reparation claim arising out of an<br />
accident at work. Liability was in<br />
dispute, but there were different<br />
versions of how the accident had<br />
occurred from the three witnesses.<br />
Mr Brown was reluctant to give<br />
evidence, and settlement was<br />
negotiated at the doors of the<br />
court with his authority at a sum<br />
well below the amount sued for.<br />
Mr Brown subsequently made<br />
a claim against his solicitors<br />
alleging that the settlement had<br />
been made against his will. <strong>The</strong><br />
responsible partner maintained<br />
that Mr Brown had agreed<br />
the basis of the<br />
settlement and given<br />
authority to proceed.<br />
If only the file had included<br />
an attendance note giving<br />
details of the discussions at<br />
court and confirming that<br />
the client had given his<br />
authority to settle. If only a<br />
confirmatory letter had been<br />
sent to Mr Brown.<br />
Case study 2<br />
Practice B acted for Mr and<br />
Mrs Green in a house<br />
purchase. Two years later,<br />
the Greens contacted the<br />
firm complaining that new<br />
neighbours were claiming<br />
ownership of a plot of ground<br />
across the road which the<br />
Greens had considered<br />
belonged to them.<br />
<strong>The</strong> purchase file was<br />
retrieved from storage, but it<br />
made no mention of the additional<br />
area of ground the Greens believed to<br />
have been included in what they had<br />
purchased.<br />
If only the file had included a letter<br />
sending out a plan and asking the<br />
Greens to confirm that the area<br />
indicated on the plan was the same as<br />
they understood they were buying.<br />
Case study 3<br />
Practice C acted for Mrs Elder and<br />
her daughter and son in law, the<br />
Youngers, in the purchase by the<br />
Youngers of a house in which they<br />
could all live. Mrs Elder provided the<br />
bulk of the purchase price, the<br />
balance being funded by the Youngers<br />
by way of a mortgage. Following a<br />
family fallout, Mrs Elder claimed that<br />
she had not been properly advised<br />
and should have had a contract<br />
enabling her to force a sale of the<br />
property and recover her money.<br />
<strong>The</strong> firm intimated the claim to<br />
insurers and explained that they had<br />
been acting only in the purchase and<br />
that, prior to instructing the firm, Mrs<br />
Elder and the Youngers had already<br />
agreed the basis on which they were<br />
purchasing, funding and occupying<br />
the property. <strong>The</strong> insurers’ view?<br />
If only the firm had written to Mrs<br />
Elder advising her of the risks involved<br />
in proceeding as planned and strongly<br />
suggesting that she would be well<br />
advised to seek separate representation<br />
and advice.<br />
Case study 4<br />
Practice D acted for Mrs Wright in<br />
connection with the preparation of an<br />
agreement dealing with the sharing of<br />
the parties’ matrimonial property on<br />
separation. Mrs Wright subsequently<br />
alleged that her solicitors had failed to<br />
advise her in relation to her spouse’s<br />
pensions and, in particular, that if she<br />
settled on the basis set out in the<br />
agreement she would be giving up her<br />
rights to make a claim on his pension<br />
rights. <strong>The</strong> solicitor was adamant that<br />
advice was given during a telephone<br />
call and at a meeting.<br />
If only the file had contained file<br />
notes of the telephone call and<br />
meeting, and a follow-up letter to<br />
record the advice given.<br />
www.journalonline.co.uk
Case study 5<br />
Practice E had acted for Mr Bigg for<br />
several years. An extremely<br />
demanding client, he produced<br />
regular work for the firm’s commercial<br />
team. When Mr Bigg’s aunt died, the<br />
client partner promptly introduced<br />
one of his trust and executry<br />
colleagues, assuring Mr Bigg that his<br />
aunt’s estate was in good hands. <strong>The</strong><br />
client partner was shocked when,<br />
months later, he received an email<br />
from Mr Biggs with a veritable tirade<br />
about the<br />
length of time<br />
it was taking to<br />
wind up his<br />
aunt’s estate and<br />
alluding to loss of an<br />
investment opportunity as a result<br />
of the “delay in receiving my<br />
inheritance”. <strong>The</strong> email concluded:<br />
“If it takes the firm six months to<br />
wind up a simple estate, I have to<br />
question the firm’s ability to handle<br />
my other business properly”.<br />
No Master Policy claim arose in<br />
this case, but a significant client<br />
relationship may have been damaged –<br />
perhaps a significant client lost. If only<br />
the client had been given an indication<br />
of likely timescale and factors that<br />
might affect the timescale.<br />
Case study 6<br />
Practice F received a letter claiming for<br />
losses sustained by a former client “as a<br />
result of having been committed to<br />
missives to purchase prior to<br />
concluding a contractual bargain to sell<br />
her existing property”. <strong>The</strong> letter went<br />
on to allege that the former client had<br />
not been properly advised by Practice F<br />
of the contractual nature of the<br />
missives process, and had not realised<br />
that by concluding the bargain to<br />
purchase she could not escape without<br />
penalty from the contract to buy.<br />
If only there was a record of the<br />
client being given a clear explanation<br />
before conclusion of the implications of<br />
missives being concluded – and a record<br />
of the client’s instructions to proceed.<br />
Conclusions<br />
What can you do to avoid the<br />
communication problems illustrated<br />
in these case studies? Keep in mind<br />
the following points when meeting<br />
with and reporting to clients, and<br />
consider these points when reviewing<br />
your files:<br />
Is significant advice recorded in<br />
writing (and, where appropriate,<br />
acknowledged by the client)?<br />
One of the concerns currently<br />
www.lawscotjobs.co.uk<br />
<strong>The</strong> Society’s Insurance Committee has<br />
identified three categories of claim<br />
(based on the frequency, severity, or<br />
avoidability of claims) which it believes<br />
the profession should be specifically<br />
targeting:<br />
Break notice defects<br />
break notices not being served in<br />
accordance with the terms of the lease<br />
and therefore being ineffective<br />
CML Handbook breaches<br />
lender claims alleging breach of CML<br />
Handbook reporting requirements<br />
Overlooked securities<br />
& inhibitions<br />
claims for inhibitions or postponed<br />
securities which have not been<br />
identified from searches undertaken,<br />
including form 12 and form 13 reports<br />
<strong>The</strong> committee believes that the<br />
adoption of effective risk management<br />
being expressed in relation to the<br />
impact of the recession is that clients<br />
experiencing changed circumstances<br />
and financial pressures will be<br />
prompted to re-examine advice given<br />
by solicitors, settlements achieved<br />
and contracts documented and, with<br />
the benefit of hindsight, allege that<br />
risks should have been anticipated,<br />
that they should have been better<br />
protected, that a better<br />
deal should have<br />
been achieved for<br />
them. Responding<br />
to this sort of<br />
allegation will be<br />
assisted by having a<br />
well documented file as<br />
well as a clearly defined<br />
scope of engagement.<br />
Has the client been kept<br />
regularly updated in<br />
accordance with the terms of<br />
engagement? Is legal jargon<br />
avoided so far as possible?<br />
Getting terms of engagement<br />
right is one of the ways of<br />
avoiding claims and complaints.<br />
During more challenging<br />
economic conditions, when<br />
clients may be more inclined to<br />
dispute fees, and challenge the<br />
service provided, it is particularly<br />
important to ensure that clients are<br />
Alistair Sim and Marsh<br />
Alistair Sim is a former solicitor in private<br />
practice who works in the FinPro (Financial<br />
and <strong>Professional</strong> Risks) National Practice at<br />
Marsh, the world’s leading risk and<br />
insurance services firm. To contact Alistair,<br />
email: alistair.j.sim@marsh.com .<br />
<strong>The</strong> information contained in this article<br />
provides only a general overview of<br />
subjects covered, is not intended to be<br />
taken as advice regarding any individual<br />
situation and should not be relied upon as<br />
such. Insureds should consult their<br />
insurance and legal advisers regarding<br />
specific coverage issues.<br />
Marsh Ltd is authorised and regulated by<br />
the Financial Services Authority.<br />
absolutely clear about the scope of<br />
your engagement for the particular<br />
transaction and the terms on which<br />
services are being provided. A number<br />
of claims alleging negligence have<br />
arisen in response to proceedings<br />
raised for payment of the solicitors’<br />
fees where there has been no evidence<br />
of prior client dissatisfaction.<br />
Has the method of charging been<br />
agreed with the client in advance and<br />
set out clearly in terms of<br />
engagement/business? Is the client<br />
kept advised of changes in expected<br />
costs and the reasons for this?<br />
Has the client been kept regularly<br />
updated in accordance with the<br />
terms of engagement? Is legal<br />
jargon avoided so far as possible?<br />
Three top risk management targets<br />
measures could effectively eliminate<br />
the incidence of these claims.<br />
Identify possible gaps in your<br />
systems and procedures, and prioritise<br />
the actions you/your firm will take to<br />
address them.<br />
Impact of effective communication<br />
on top three targets<br />
How could improved communication<br />
have a beneficial impact on the<br />
targeted categories of claim?<br />
Ineffective break notices may be<br />
attributable to “process errors” where<br />
notices have been served too late or by<br />
the wrong method, but in some cases<br />
they are attributable to<br />
“communication errors or omissions”.<br />
<strong>The</strong> tenants’ solicitors may be unaware<br />
of a change of landlord, but the tenants<br />
certainly ought to know. Making sure<br />
the client fully appreciates the vital<br />
importance of naming/serving notice<br />
on the correct landlord is essentially a<br />
matter of effective communication.<br />
CML Handbook breaches:<br />
process failure or communication<br />
failure, or both? Allegations being<br />
made by lenders at this time include<br />
that solicitors have failed to report facts<br />
in accordance with the CML Handbook.<br />
In some of these situations, it may have<br />
seemed to the solicitor unclear whether<br />
it was strictly necessary to report<br />
particular facts because (a) the lender<br />
must be assumed to be aware of the<br />
facts already, or (b) it was unclear<br />
whether the lender would consider the<br />
facts material and therefore expect the<br />
facts to be reported. As far as the<br />
Master Policy insurers are concerned,<br />
the prudent approach to be adopted is<br />
“If in doubt – communicate!”<br />
December 09 the<strong>Journal</strong> / 41
<strong>Professional</strong> <strong>briefing</strong> Criminal court<br />
At last Young v Heatly has been overruled – but it still may not need much<br />
of a public element to turn private conduct into a breach of the peace, as<br />
Charles Stoddart explains in his latest survey of the criminal courts<br />
Keeping the peace<br />
Breach of the peace in private<br />
<strong>The</strong>re was always something odd<br />
about the decision in Young v Heatly<br />
1959 JC 66. <strong>The</strong> idea that conduct,<br />
however reprehensible, which occurs<br />
in private and without affecting the<br />
community should give rise to a<br />
charge of breach of the peace, as<br />
opposed to some other crime, is not<br />
one which has ever sounded quite<br />
right. But the generations of Scottish<br />
criminal lawyers which have criticised<br />
the decision (but have had to live<br />
with it) can now rest easy: it has been<br />
overruled by a bench of five judges in<br />
Harris v HMA [2009] HCJAC 80<br />
(opinion published 8 October 2009).<br />
Whereas in Young the locus of the<br />
crime was a teacher’s private room at<br />
42 / the<strong>Journal</strong> December 09<br />
a technical school where the deputy<br />
headmaster made indecent<br />
suggestions to several of his pupils, in<br />
Harris the locus of the alleged breach<br />
of the peace was police headquarters<br />
in Dundee, where (according to the<br />
indictment held to be relevant by the<br />
sheriff) the accused had made threats<br />
to two police officers in the course of<br />
various conversations with them,<br />
which threats were said to have<br />
placed each of them in a state of fear<br />
and alarm. <strong>The</strong> accused appealed<br />
against the decision on relevancy,<br />
resulting in a full debate before the<br />
High Court of all the authorities,<br />
including the impact of ECHR.<br />
Familiar cases such as Ferguson<br />
v Carnochan (1889) 16R (J) 93, Smith v<br />
Disturbance<br />
or potential<br />
disturbance<br />
of even a small<br />
group of<br />
individuals in<br />
a private house<br />
might suffice,<br />
provided there<br />
was a realistic<br />
risk of it being<br />
discovered<br />
Donnelly 2002 JC 65 and Jones v<br />
Carnegie 2004 JC 136 were all analysed<br />
again, the court confirming that a<br />
conjunctive test was required: there<br />
had to be conduct which presented as<br />
genuinely alarming in its context to<br />
any reasonable person and which<br />
threatened serious disturbance to the<br />
community. That was not what had<br />
happened in the teacher’s room in<br />
Young v Heatly, a decision which was<br />
found to be erroneous in a number of<br />
important respects, particularly<br />
because of the absence of a public<br />
element to what had occurred: there<br />
was nothing which produced or was<br />
likely to produce alarm in the minds of<br />
the lieges. Nor did the conduct<br />
complained of in the instant case have<br />
www.journalonline.co.uk
this vital element; it was not suggested<br />
that any of the officers involved might<br />
have been provoked to react by taking<br />
the law into his own hands or that<br />
otherwise there could have been any<br />
apprehension of a disturbance to the<br />
public peace.<br />
But the court declined to provide<br />
definitive guidance as to what public<br />
element would be sufficient to<br />
transform private conduct into a<br />
breach of the peace, observing that<br />
disturbance or potential disturbance<br />
of even a small group of individuals<br />
in a private house might suffice,<br />
provided there was a realistic risk of it<br />
being discovered. <strong>The</strong> appeal was<br />
allowed and the sheriff directed to<br />
dismiss the charges as irrelevant.<br />
Voice samples at ID parades<br />
It has long been the practice in<br />
Scotland that a person participating in<br />
an identification parade can be asked<br />
to speak, so that what he says and how<br />
he says it can be compared by a witness<br />
at the parade to the voice of the person<br />
he heard at the material time of the<br />
crime. Further, if the solicitor attending<br />
the parade on behalf of the suspect is<br />
concerned that the parade is in any way<br />
unfair, he should make his objection<br />
known at the time; and likewise if at<br />
the later trial the evidence of what<br />
happened at the parade is thought to<br />
be objectionable, it should be made<br />
the subject of objection when it is led.<br />
In terms of s 118(8) of the 1995 Act,<br />
failure by the defence representative<br />
to object timeously will bar a<br />
successful appeal.<br />
In McFadden v HMA [2009]<br />
HCJAC 78 (8 October 2009), no<br />
objection was taken during the trial<br />
to the leading of evidence of voice<br />
identification, a decision<br />
characterised by the appeal court as a<br />
proper exercise of professional<br />
judgment by trial counsel and giving<br />
no rise to Anderson criticism. In so<br />
doing, the court rejected an ECHR<br />
ground of appeal to the effect that the<br />
accepted Scottish practice of requiring<br />
voice samples was contrary to article<br />
6 and could be characterised as a<br />
breach of the right to silence or the<br />
right not to incriminate oneself.<br />
Domestic case law had sought to find<br />
the correct balance between the<br />
public interest and the interests of the<br />
accused and to address the issue of<br />
proportionality; in the circumstances<br />
of the present case, there had been a<br />
fair trial and the appeal was refused.<br />
Discounting disqualification<br />
One of the yet-unanswered problems<br />
thrown up by the system of sentence<br />
www.lawscotjobs.co.uk<br />
Don’t miss<br />
these<br />
essential<br />
<strong>briefing</strong>s<br />
Criminal court:<br />
Roundup<br />
42<br />
IP: Google<br />
AdWords case<br />
44<br />
Criminal practice:<br />
Crown disclosure<br />
45<br />
Agriculture: Tenant<br />
improvements<br />
46<br />
Sport: Refereeing<br />
by television<br />
47<br />
EU: Services<br />
Directive<br />
48<br />
Discipline Tribunal<br />
49<br />
Websites:<br />
Advocates<br />
50<br />
Book reviews:<br />
Employment;<br />
Criminal Procedure<br />
51<br />
discounting is whether in a road<br />
traffic case the ancillary elements of<br />
the sentence should be discounted.<br />
What about the length of the<br />
disqualification and/or the number of<br />
penalty points? Should any discount<br />
be applied to either or both if and<br />
when the offender pleads guilty?<br />
<strong>The</strong>re has been no consistent<br />
approach taken in the sheriff court,<br />
but this may change once the appeal<br />
court has considered the remitted<br />
appeal in Ross v PF Aberdeen [2009]<br />
HCJAC 82 (22 October 2009).<br />
<strong>The</strong> appellant had pleaded guilty<br />
by letter to a contravention of s 3 of<br />
the Road Traffic Act 1988. His fine<br />
was discounted by one third, but no<br />
discount was applied to the number<br />
of penalty points imposed, in line<br />
with Stewart v Griffiths 2005 SCCR<br />
291. He appealed against this<br />
decision, citing the emerging practice<br />
of discounting periods of<br />
disqualification, on the basis that one<br />
component of the latter might be<br />
punishment (see Rennie v Frame 2005<br />
SCCR 608) and that the same might<br />
be said for penalty points. In order<br />
that there might be definitive<br />
guidelines on the sentencing issues<br />
thus raised, the case was remitted to a<br />
bench of five judges.<br />
Evidence on commission<br />
<strong>The</strong> possibility of taking evidence on<br />
commission in a criminal case was<br />
first introduced in Scotland in 1980<br />
and is now to be found in s 272 of<br />
the 1995 Act. Applications to take<br />
evidence in that way have been rarely<br />
encountered, but five were recently<br />
granted by Lord Brodie in HMA v RM<br />
[2009] HCJ 05 (28 October 2009).<br />
As might be expected, the cases<br />
were fact-specific: the petitions were<br />
in presented by the Crown with a<br />
view to taking evidence from five<br />
elderly complainers who were<br />
housebound and unable to come to<br />
give evidence in court. It was alleged<br />
that each had been the victim of a<br />
fraud perpetrated after the accused<br />
had obtained entry to their homes.<br />
What was proposed was an open<br />
commission with the trial judge as<br />
commissioner attending at the home<br />
of each complainer, along with<br />
counsel and solicitors on both sides, a<br />
shorthand writer and clerk of court,<br />
but not the accused.<br />
Lord Brodie rejected objections<br />
based on s 272(3)(a) and (b) of the<br />
1995 Act, holding that the evidence<br />
was necessary for the proper<br />
adjudication of the trial and that there<br />
would be no unfairness to the accused<br />
in the proposed procedure. Although<br />
the latter would not be present when<br />
the witnesses were examined, he<br />
would see the transcript of their<br />
evidence before it was read out in<br />
court. In the unlikely and exceptional<br />
event that the cross examination<br />
previously conducted had been less<br />
than complete, it would be possible to<br />
take further evidence from the<br />
witness. In addition, modern practice<br />
was much more familiar with<br />
provisions (such as those introduced<br />
by the Vulnerable Witnesses<br />
(Scotland) Act 2004) designed to<br />
facilitate the giving of evidence by<br />
more or less indirect means.<br />
And finally?<br />
In the August issue I commented<br />
on the decision in McIntyre v HMA<br />
(now reported at 2009 SCCR 719),<br />
in which the High Court held,<br />
founding on s 124 of the 1995 Act,<br />
that once an appeal against<br />
conviction has been determined,<br />
the appeal cannot be reopened in such<br />
a way as to allow consideration of a<br />
further purported ground of appeal<br />
against conviction, apart of course<br />
from the situation where the case is<br />
referred to the court by the Scottish<br />
Criminal Cases Review Commission.<br />
But in Harris, Petr [2009] HCJAC 85<br />
(opinion published 27 October 2009),<br />
following a decision by the<br />
Commission not to make such a<br />
reference in respect of an appeal<br />
against conviction which had been<br />
refused in 2006, a petition to the nobile<br />
officium was presented. <strong>The</strong>re, the<br />
petitioner sought to reopen by that<br />
means the 2006 conviction, arguing<br />
simply that McInytre was “wrong”.<br />
Not surprisingly, this submission<br />
was emphatically rejected by the High<br />
Court, since no attempt was made to<br />
distinguish that decision, or the<br />
earlier case of Cochrane, Petr, 2006<br />
SCCR 213. <strong>The</strong> petition was<br />
dismissed as incompetent. It was<br />
held that s 124 had been properly<br />
interpreted in McIntyre; it was not (as<br />
the petitioner contended) concerned<br />
only with the prevention of appeals<br />
to the House of Lords. <strong>The</strong> principle<br />
of stare decisis applied, and the<br />
petitioner had exhausted his rights<br />
under the statutory scheme.<br />
However, that may still not be the<br />
end of this saga, for a bench of five<br />
judges is expected to rule soon in a<br />
number of further similar petitions<br />
by convicted persons, including Nat<br />
Fraser and Luke Mitchell. As they say,<br />
watch this space.<br />
Charles Stoddart is a criminal law<br />
author and a former sheriff<br />
December 09 the<strong>Journal</strong> / 43
<strong>Professional</strong> <strong>briefing</strong> IP<br />
<strong>The</strong> Advocate General’s opinion in the Google AdWords case has<br />
divided commentators; but will it be followed by the European Court?<br />
On the mark?<br />
Recently the European Court of<br />
Justice’s Advocate General, Poiares<br />
Maduro, delivered his opinion on the<br />
ongoing dispute between Google and<br />
three French companies regarding<br />
Google’s AdWords service. <strong>The</strong><br />
opinion had been eagerly awaited by<br />
lawyers and brand owners seeking<br />
clarity on whether AdWords<br />
constitutes trade mark infringement.<br />
<strong>The</strong> opinion, that the service does not<br />
in itself constitute an infringement,<br />
has been met with surprise and leaves<br />
much uncertainty pending the final<br />
decision of the court.<br />
Google AdWords is a service<br />
whereby parties can pay to have<br />
their web address displayed as a<br />
“sponsored link” on the Google<br />
results page. <strong>The</strong> service centres on<br />
“keywords” which, when entered<br />
into the search engine, trigger the<br />
return of sponsored web links.<br />
Controversy centres on the fact that<br />
one party can obtain the AdWords<br />
for another party’s trade marks. For<br />
example Adidas could obtain the<br />
AdWord, “Nike”. Brand owners have<br />
been concerned about this,<br />
particularly with regard to potential<br />
misuse by the sellers of counterfeit<br />
goods. Indeed one of the French<br />
actions referred to the ECJ concerns<br />
Louis Vuitton and a counterfeiter.<br />
Limited use<br />
<strong>The</strong> Advocate General considered<br />
article 5 of the Trade Mark Directive<br />
(89/104), which forms the basis of<br />
UK trade mark legislation. Central to<br />
his assessment was his interpretation<br />
of article 5(1), which sets out the<br />
grounds for trade mark infringement.<br />
He opined that there are four<br />
cumulative conditions in relation to<br />
the use of trade mark(s) which must<br />
be met in order to establish<br />
infringement, namely:<br />
the owner of the relevant mark(s)<br />
must not consent to the use;<br />
the use must be in the course of<br />
trade;<br />
the use must relate to goods or<br />
services which are identical or similar<br />
44 / the<strong>Journal</strong> December 09<br />
to those covered by the trade mark(s);<br />
and<br />
the use affects or is liable to affect<br />
the essential function of the trade<br />
mark(s) (to guarantee to consumers<br />
the origin of the goods or services), by<br />
reason of a likelihood of confusion<br />
on the part of the public.<br />
Whilst the Advocate General<br />
considered that the first two<br />
conditions had been satisfied, he<br />
opined that permitting advertisers to<br />
select AdWords keywords which<br />
correspond to trade marks, so that<br />
adverts for sites are presented as<br />
results of searches involving those<br />
keywords, does not meet the<br />
conditions required to establish<br />
infringement. He commented: “no<br />
good or service is sold to the general<br />
public. <strong>The</strong> use is limited to a<br />
selection procedure which is internal<br />
to AdWords and concerns only<br />
Google and the advertisers. <strong>The</strong><br />
service being sold, and to which the<br />
use of the keywords corresponding to<br />
the trade mark is linked, is therefore<br />
Google’s own service, AdWords”.<br />
Furthermore, he did not consider<br />
that the essential functions of trade<br />
marks are compromised,<br />
commenting: “uses by Google, in<br />
AdWords, of keywords which<br />
correspond to trade marks do not<br />
affect the other functions of the trade<br />
mark, namely guaranteeing the<br />
quality of the goods or services”.<br />
Whilst in his opinion infringement<br />
had not been established, reference was<br />
made to the trade mark proprietor’s<br />
right to address issues under national<br />
liability laws if specific occurrences<br />
giving rise to illegal damage to their<br />
trade mark could be shown.<br />
Reaction and follow-up<br />
<strong>The</strong>re are some who support the<br />
Advocate General’s opinion, especially<br />
those who wish to restrict the scope of<br />
the exclusivity afforded to trade mark<br />
owners. Indeed the Advocate General<br />
was concerned that a finding of<br />
infringement by the ECJ would extend<br />
trade mark protection, “to rule in<br />
Some<br />
commentators<br />
argue that the<br />
Advocate<br />
General has<br />
misinterpreted<br />
article 5(1) as<br />
there is not<br />
always a need<br />
to show a<br />
likelihood of<br />
confusion to<br />
establish<br />
trade mark<br />
infringement<br />
effect, that the mere possibility that a<br />
system – in the present cases, AdWords<br />
– may be used by a third party to<br />
infringe a trade mark means that a<br />
system is, itself, in infringement”.<br />
<strong>The</strong>re are many, however, who have<br />
been surprised by and are critical of<br />
the opinion. Obviously it has not<br />
been welcomed by brand owners,<br />
who will now have to consider<br />
AdWords, and their associated costs,<br />
as an additional strand of their brand<br />
protection and marketing policy.<br />
<strong>The</strong>re has also been legal criticism,<br />
with some commentators arguing<br />
that the Advocate General has<br />
misinterpreted article 5(1) as there is<br />
not always a need to show a<br />
likelihood of confusion to establish<br />
trade mark infringement.<br />
Whilst Google will surely be<br />
delighted, the final judgment of the<br />
ECJ is awaited and although an<br />
Advocate General’s opinion is<br />
persuasive, it is non-binding.<br />
In the interim the position is far<br />
from clear. It is worth noting that a<br />
French court ordered eBay to pay the<br />
Louis Vuitton Moet Hennessy group<br />
€80,000 for using the group’s trade<br />
marks as “keywords” only the day<br />
before the release of this opinion.<br />
<strong>The</strong> final decision of the ECJ is<br />
expected next year. Hopefully this will<br />
offer some certainty on these matters.<br />
Until then, brand owners would be<br />
wise to evaluate their key brands and<br />
whether AdWords should be obtained<br />
to maintain their value.<br />
Ross Nicol, Associate, Maclay<br />
Murray & Spens LLP<br />
www.journalonline.co.uk
<strong>Professional</strong> <strong>briefing</strong> Criminal practice<br />
Crown disclosure:<br />
the next level<br />
COPFS has adopted the encrypted pen drive as its primary<br />
method of disclosure of information to defence agents, but<br />
agents must first be registered as data controllers<br />
In April 2009, the Crown Office and<br />
Procurator Fiscal Service (COPFS)<br />
introduced new disclosure procedures<br />
whereby information disclosed to<br />
defence agents is provided<br />
electronically on pen drives.<br />
One of the main driving forces<br />
behind this change is a need for<br />
COPFS to comply with the seventh<br />
data protection principle to ensure<br />
that any information disclosed by<br />
them is adequately protected against<br />
accidental loss or damage. <strong>The</strong> pen<br />
drives, which are encrypted, can only<br />
be accessed by solicitors on receipt of<br />
a password, provided by COPFS.<br />
Defence agents as data controllers<br />
As recently highlighted in this<br />
magazine (<strong>Journal</strong>, August, 27),<br />
solicitors are considered processors<br />
of personal information for the<br />
purposes of the Data Protection Act<br />
1998. As solicitors determine the<br />
purpose for which and the manner in<br />
which personal data are processed,<br />
they are also data controllers. If any<br />
of that information is processed<br />
electronically, even if it is just to<br />
complete legal aid applications or<br />
write submissions, then solicitors<br />
must notify the Information<br />
Commissioner’s Office (ICO)<br />
under the 1998 Act that they<br />
are data controllers.<br />
Failure to notify the ICO is a strict<br />
liability offence under the 1998 Act<br />
and the ICO is currently targeting<br />
solicitors’ and accountants’ firms on a<br />
regional basis, including legal firms<br />
across Scotland.<br />
As data controllers, solicitors also<br />
have a duty to comply with the seventh<br />
data protection principle by putting in<br />
place such measures as are necessary to<br />
ensure that all information they<br />
process is kept secure.<br />
www.lawscotjobs.co.uk<br />
Greener Scotland<br />
In addition, by reducing the amount<br />
of paper generated by cases, these new<br />
disclosure processes will also comply<br />
with the Government’s Greener<br />
strategic objective to improve Scotland’s<br />
natural and built environment.<br />
Defence agents are then able to<br />
print only such information as they<br />
require in the preparation and<br />
presentation of the defence.<br />
<strong>The</strong> new process is also in line with<br />
the current Government agenda in<br />
relation to the expansion and<br />
encouragement of electronic business<br />
in Scotland in the 21st century.<br />
Implementation of<br />
the new processes<br />
COPFS has introduced this new<br />
policy following consultation with<br />
the Assistant Information<br />
Commissioner for Scotland and the<br />
Law Society of Scotland.<br />
As defence agents must be registered<br />
as data controllers if they process<br />
information electronically, COPFS<br />
must be satisfied prior to disclosure on<br />
pen drive that the agent has notified<br />
the ICO. Defence agents are, therefore,<br />
asked to sign an undertaking<br />
confirming that they registered prior<br />
to receiving their first pen drive.<br />
With effect from 31 October 2009,<br />
COPFS has adopted disclosure by<br />
encrypted pen drive as the primary<br />
method of disclosure and COPFS will<br />
cease to provide information hard copy,<br />
except in exceptional circumstances or<br />
where the information cannot be<br />
uploaded onto a pen drive.<br />
As a responsible public authority,<br />
COPFS will not provide disclosure<br />
information to any agent who refuses<br />
to provide the written undertaking<br />
confirming that they are registered as<br />
data controllers.<br />
As data<br />
controllers,<br />
solicitors also<br />
have a duty to<br />
comply with the<br />
seventh data<br />
protection<br />
principle by<br />
putting in place<br />
such measures<br />
as are<br />
necessary to<br />
ensure that all<br />
information<br />
they process is<br />
kept secure<br />
Legal requirement<br />
COPFS secure website<br />
<strong>The</strong> pen drive, however, is only the<br />
first stage in COPFS’s shift towards<br />
electronic disclosure. COPFS is<br />
working with an external software<br />
company to design a secure website<br />
through which information will be<br />
disclosed to the defence.<br />
An electronic disclosure file will be<br />
created on the COPFS database and<br />
then downloaded onto a secure<br />
disclosure website which defence<br />
agents can then access to obtain the<br />
disclosure information in respect of a<br />
particular case for which they have<br />
been instructed.<br />
Testing of this new website is<br />
currently underway with a small<br />
number of defence agents in Glasgow<br />
and it is anticipated that this new<br />
system will be rolled out in early 2010.<br />
<strong>The</strong>re is no doubt that the<br />
introduction of these new processes<br />
by COPFS will be a culture change<br />
for all concerned, but it should<br />
provide a more efficient and secure<br />
method of disclosure of personal,<br />
and often sensitive, information to<br />
defence agents.<br />
Angela Farrell, Policy Division, COPFS<br />
<strong>The</strong> seventh data protection principle states:<br />
“Appropriate technical and organisational measures<br />
shall be taken against unauthorised or unlawful<br />
processing of personal data and against accidental loss<br />
or destruction of, or damage to, personal data.”<br />
December 09 the<strong>Journal</strong> / 45
<strong>Professional</strong> <strong>briefing</strong> Agriculture<br />
Tackling<br />
improvements<br />
<strong>The</strong> Land Court has clarified the approach to be adopted<br />
in considering tenants’ proposed part II improvements<br />
Practitioners will know that, to<br />
preserve his right to compensation at<br />
waygo, the tenant of an agricultural<br />
holding requires to give notice, under<br />
s 38(1) of the Agricultural Holdings<br />
(Scotland) Act 1991, “of his intention<br />
to carry out… [an improvement]…<br />
and of the manner in which he<br />
proposes to do so”. Section 39 allows<br />
the landlord to give counter-notice<br />
objecting to the improvement or the<br />
manner in which it is to be carried<br />
out. <strong>The</strong> tenant may then seek the<br />
Land Court’s approval of the<br />
proposed improvement. This may be<br />
given unconditionally or on terms<br />
(including a reduction in the potential<br />
compensation), or withheld.<br />
<strong>The</strong>se provisions were considered<br />
by the court in R & M Whiteford v<br />
Trustees for Cowhill Trust (Application<br />
RN SLC/174/08), 29 July 2009.<br />
Messrs Whiteford, a limited<br />
partnership, were tenants of four<br />
Dumfriesshire farms collectively<br />
known as “Abbey Farm” and two<br />
further holdings, under a 40 year<br />
lease from 1987. <strong>The</strong>y ran the<br />
holding collectively as a dairy farm.<br />
<strong>The</strong>y served notice of their intention<br />
to install a “voluntary milking<br />
system” (VMS), comprising a number<br />
of robotic milking units. Following a<br />
counter-notice they applied to the<br />
court for approval.<br />
Defective notice?<br />
<strong>The</strong> landlords argued (i) that the<br />
tenants’ notice was so deficient in its<br />
description of the work and how it<br />
was to be carried out that it was<br />
invalid; and (ii) that the improvement<br />
would lead to over-capitalisation of<br />
the holding. <strong>The</strong> notice was attacked<br />
on several fronts, including that it did<br />
not disclose the number of VMS units<br />
proposed and, to summarise, that<br />
discrepancies on methodology<br />
46 / the<strong>Journal</strong> December 09<br />
between the notice, a later notice<br />
(subsequently withdrawn) and the<br />
planning application made it<br />
impossible for them to know the<br />
tenants’ true intentions.<br />
<strong>The</strong> court held that, in deciding on<br />
the validity of a s 38 notice, it could not<br />
look beyond the four corners of the<br />
notice itself. <strong>The</strong> only criticism in that<br />
respect was failure to specify the<br />
number of units, which the court<br />
regarded as a point of detail, given that<br />
it was clear what kind of system was to<br />
be installed. (<strong>The</strong> omission was made<br />
good on the evidence, but this did not<br />
sway the court.) It did, however,<br />
observe that it is in the tenant’s interests<br />
to make a notice full and detailed, not<br />
only to avoid it being challenged as<br />
such but to avoid the risk that some<br />
element of the improvement is not<br />
eligible for compensation at outgo,<br />
because the landlord has been<br />
given insufficient notice.<br />
Test for approval<br />
On the landlords’ second objection,<br />
the court held that the test in<br />
<strong>The</strong> court<br />
viewed this as<br />
an objective<br />
test to be<br />
applied without<br />
regard for what<br />
it thought the<br />
applicants<br />
should be<br />
doing or<br />
might do<br />
instead<br />
assessing whether it should approve<br />
(unconditionally or on terms) or<br />
disapprove an improvement was the<br />
formulation in Gill, Agricultural<br />
Holdings (3rd ed), distilling previous<br />
case law: whether it was “reasonable<br />
and desirable” on agricultural<br />
grounds for the efficient<br />
management of the holding.<br />
<strong>The</strong> court viewed this as an objective<br />
test to be applied without regard for<br />
what it thought the applicants should<br />
be doing or might do instead. In any<br />
given situation there might be a range<br />
of possibilities (from “adventurous” to<br />
“safe”), all of which were reasonable.<br />
However, it then appeared to contradict<br />
itself by observing obiter that it was<br />
entitled to refuse consent if, in all the<br />
circumstances (including the<br />
availability of the alternative), it<br />
considered that there was an alternative<br />
which was clearly preferable to the<br />
tenant’s proposal, albeit both were<br />
reasonable on their own terms.<br />
Although the court found that the VMS<br />
was not the only means available for<br />
improving the efficiency of Whitefords’<br />
dairy enterprise and that what was<br />
proposed was financially the more<br />
risky of the options available, it was<br />
nevertheless reasonable and desirable<br />
on agricultural grounds for the efficient<br />
management of the holding and,<br />
accordingly, should be approved.<br />
As a subsidiary issue, the landlords<br />
argued for a reduction in the tenants’<br />
ultimate claim for compensation,<br />
since a clause in the lease that the two<br />
holdings were to be used “as livestock<br />
and cropping units” meant that the<br />
court, in applying the reasonable and<br />
desirable test, had to confine itself to<br />
Abbey Farm: the other units could<br />
not be used for grazing dairy stock, or<br />
growing feed for dairy cattle<br />
elsewhere, and could, accordingly,<br />
not be taken into account in assessing<br />
the carrying capacity of the holding<br />
for dairy purposes. <strong>The</strong> court,<br />
however, inferred that the restriction<br />
prohibited use as dairy units as such,<br />
but not use for anything to do with<br />
dairying, however remotely, and<br />
grazing and cropping for dairy stock<br />
was permitted.<br />
<strong>The</strong> case, accordingly, covered a<br />
wide range of interesting points – in<br />
particular the court’s exposition of the<br />
test to be applied to a proposed<br />
improvement and its observation on<br />
the framing of a tenant’s notice in<br />
order to preserve the right to<br />
compensation, although this restates<br />
what I have always understood to be<br />
best advice.<br />
Alasdair G Fox, Anderson Strathern LLP<br />
www.journalonline.co.uk
Can rules be devised to protect the integrity of<br />
sporting contests by ordering replays, or allowing<br />
television evidence to inform refereeing decisions?<br />
In the wake of Les Bleus’ questionable<br />
triumph over the Republic of Ireland in<br />
the playoff match to reach FIFA’s 2010<br />
World Cup finals, the game of football<br />
has come under significant scrutiny.<br />
<strong>The</strong> goal that France scored to decide<br />
the contest was clearly shown by<br />
television to have involved the football<br />
connecting with a French player’s hand,<br />
twice, unseen by the referee, in the<br />
immediate buildup to the crucial goal<br />
being scored. If spotted, the goal would<br />
not have stood.<br />
This “injustice” led to the<br />
Republic’s football association and<br />
politicians calling for a replay. FIFA<br />
are considering the introduction of a<br />
rule allowing for replays in their<br />
tournaments, and possibly the<br />
introduction of television replays<br />
and further match officials for the<br />
2010 finals, to improve the quality<br />
of decision making during the<br />
sporting contest.<br />
A replay rule?<br />
Is a replay rule likely, or indeed<br />
desirable? Apart from the obvious<br />
significant practical difficulties of<br />
organising a replay within a<br />
congested fixture list and securing the<br />
release of players (whose release from<br />
club football can only be compelled<br />
during specific “international” fixture<br />
windows), a rule would be inherently<br />
dangerous for the sporting body<br />
using it. It would grossly undermine<br />
www.lawscotjobs.co.uk<br />
Camera<br />
angles<br />
In American<br />
football, played<br />
under the<br />
auspices of the<br />
NFL, the use of<br />
television is<br />
more widely<br />
available.<br />
Teams have the<br />
ability to issue<br />
a set number of<br />
challenges to<br />
refereeing<br />
decisions<br />
<strong>Professional</strong> <strong>briefing</strong> Sport<br />
the role of the match officials and the<br />
concept of finality enshrined in the<br />
Laws of the Game, per law 5: “<strong>The</strong><br />
decisions of the referee regarding facts<br />
connected with play, including<br />
whether or not a goal is scored and<br />
the result of the match, are final”.<br />
This principle is echoed in many<br />
different sports and is regularly upheld<br />
by the refusal of the Court of<br />
Arbitration for Sport and the Olympic<br />
Association to allow any challenge,<br />
whether direct or indirect, to sporting<br />
decisions that are taken on field and in<br />
play. Generally, the civil courts have<br />
been very content to decline to<br />
interfere in sport by reviewing<br />
“sporting decisions”. In any rule that<br />
would allow FIFA to intervene and<br />
order a replay, some form of discretion<br />
would likely be necessary and FIFA<br />
would, in exercising that discretion,<br />
leave itself open to challenge on the<br />
decision making process. Otherwise<br />
the agreement of both participating<br />
sides would be required. In the writer’s<br />
view, FIFA is likely to be very reluctant<br />
to introduce a replay rule.<br />
TV evidence and<br />
additional officials?<br />
Televised broadcasts of football<br />
matches have become widely<br />
available through terrestrial<br />
television, satellite television, internet<br />
streaming and now even iPhones and<br />
other handheld devices. <strong>The</strong> wealth of<br />
English soccer is underpinned by<br />
significant broadcasting agreements.<br />
Sponsors are drawn to televised<br />
matches. Managers, pundits and the<br />
public alike believe that the<br />
introduction of a television match<br />
official is inevitable and only a<br />
question of time, to help preserve the<br />
sporting contest’s credibility.<br />
However, the question that FIFA will<br />
ultimately have to answer in<br />
considering whether to introduce<br />
video evidence, is the extent to which<br />
it should be used; and how to<br />
translate that into a meaningful and<br />
certain sporting law.<br />
In rugby union a “television match<br />
official” (TMO) is appointed for<br />
many high profile televised matches.<br />
<strong>The</strong> TMO takes advantage of up to 13<br />
different camera angles available in<br />
the outside broadcast unit to issue a<br />
live ruling when requested by the<br />
match referee. Rugby’s rules provide<br />
that the TMO can only be asked<br />
whether or not a team has grounded<br />
the ball so as to score a try. <strong>The</strong><br />
concept works well; the TMO may<br />
only rule on this aspect of play, and<br />
not matters such as a forward pass in<br />
the phase of play leading to the score.<br />
In American football, played under<br />
the auspices of the NFL, the use of<br />
television is more widely available.<br />
Teams have the ability to issue a set<br />
number of challenges to refereeing<br />
decisions in any phase of play and<br />
not simply scoring opportunities.<br />
It has been mooted that television<br />
could be used in football to determine<br />
whether the ball crossed the line<br />
between the posts, commonly the<br />
subject of controversy. Such an<br />
analysis, if allowed, would be easy to<br />
provide for and readily understood.<br />
Yet it would not be available to rule<br />
out a goal such as that controversially<br />
scored by France, where the alleged<br />
foul was in the buildup phase. If<br />
television is going to further influence<br />
football and take an active role in the<br />
outcome by assisting in refereeing<br />
decisions, FIFA’s draftsmen will need<br />
to ensure that the new rule is precisely<br />
framed in order that it clearly specifies<br />
when the televised pictures may be<br />
reviewed, that the rule may be<br />
consistently applied, and to underpin<br />
the credibility of the sporting contest.<br />
However, no such rule will entirely<br />
prevent or remedy human error,<br />
whether it be the referee missing a foul<br />
or the defenders not clearing the ball,<br />
which is as much a feature of sporting<br />
contests as is sporting prowess.<br />
Bruce A Caldow, Partner, Harper<br />
Macleod LLP<br />
December 09 the<strong>Journal</strong> / 47
<strong>Professional</strong> <strong>briefing</strong> Europe<br />
<strong>The</strong> imminent Services Directive will assist service<br />
provision generally in the way already enjoyed by<br />
lawyers, but will have some impact on the profession<br />
Cutting red<br />
tape in Europe<br />
Whilst the business of the European<br />
Union is notoriously quiet between<br />
Christmas and New Year, with<br />
“Brussels” shutting down for the<br />
festive season, a major reform is due<br />
to take place on 28 December when<br />
Directive 2006/123 on services in the<br />
internal market (the Services<br />
Directive) comes into force in<br />
national law. <strong>The</strong> UK Government is<br />
implementing the Services Directive<br />
through the Provision of Services<br />
Regulations 2009 (draft at<br />
www.opsi.gov.uk/si/si2009/draft/ukd<br />
si_9780111486276_en_1), which<br />
apply UK wide. It published a note<br />
titled “Guidance for Business on the<br />
Services Regulations” in October:<br />
www.berr.gov.uk/files/file53100.pdf .<br />
Barriers remain<br />
<strong>The</strong> Services Directive is designed to<br />
simplify provision of services across<br />
borders by removing legal and<br />
administrative barriers to trade in this<br />
sector. According to recent statistics<br />
the services sector is the largest, most<br />
dynamic economic sector in the EU,<br />
accounting for around 70% of<br />
both output and employment.<br />
However, as the UK<br />
Government note shows,<br />
it yields relatively low shares<br />
of intra-EU trade (24%) and<br />
investment.<br />
Seeking to give full effect<br />
to the Internal Market for<br />
services, the Services Directive<br />
requires each member state<br />
to remove unjustifiable or<br />
discriminatory requirements<br />
affecting the setting up or carrying<br />
on of a relevant service activity in<br />
that country. It also facilitates cooperation<br />
between regulatory<br />
authorities; sets up “one stop<br />
shops” for services<br />
providers<br />
48 / the<strong>Journal</strong> December 09<br />
According<br />
to recent<br />
statistics the<br />
services sector<br />
is the largest,<br />
most dynamic<br />
economic<br />
sector in the<br />
EU, accounting<br />
for around<br />
70% of both<br />
output and<br />
employment<br />
to find information and complete the<br />
necessary formalities in one place<br />
(Single Point of Contact); imposes a<br />
general obligation for procedures to<br />
be electronic; and sets out quality of<br />
service provisions.<br />
It applies to a whole raft of service<br />
providers from professional services<br />
such as lawyers, accountants and<br />
actuaries to consumer services such as<br />
tour operators, travel agents, plumbers<br />
etc; but not to notaries, financial service<br />
providers, electronic communication<br />
providers, or health services.<br />
Legal profession: topping up<br />
Cross-border supply of services is<br />
not new to the legal profession, one<br />
of the key professions already taking<br />
advantage of the right to free<br />
movement in Europe. Indeed, the<br />
Services Directive affects the legal<br />
profession only to the extent that it<br />
does not conflict with the provisions<br />
of the legal professions’ “own”<br />
directives, Services of Lawyers<br />
(Directive 77/249) and<br />
Establishment (Directive 98/5). <strong>The</strong><br />
former gives an EU lawyer the right<br />
to practise on a visiting or temporary<br />
basis in a member state other than<br />
that in which the lawyer qualified,<br />
and the latter gives an EU lawyer<br />
the right to practise on a<br />
permanent (“established”) basis<br />
under the lawyer’s home state<br />
title in a member state other than<br />
that in which the lawyer<br />
qualified. In practice this means<br />
that the provisions of the<br />
Framework Services Directive will<br />
top up the provisions of the two<br />
lawyers’ directives.<br />
It is actually the competent<br />
authorities, the regulatory bodies,<br />
who are impacted by the<br />
Services Directive to a<br />
large extent.<br />
<strong>The</strong> obligation to co-operate with<br />
other regulatory bodies ramps up the<br />
informal co-operation and liaison to<br />
date. It does so by setting up an<br />
electronic information exchange – the<br />
Internal Market Information System<br />
(IMI). Within this exchange the Law<br />
Society of Scotland will be able to ask<br />
the Paris Bar Association whether Ms<br />
Avocat has qualified to practise,<br />
whether she has any disciplinary<br />
findings against her and for evidence<br />
of her practising certificate. This can<br />
all be done through pre-translated<br />
tick boxes and transmitted directly<br />
from Edinburgh to Paris and back.<br />
Moreover, the emphasis on electronic<br />
communication leads to the<br />
obligation for all applications to be<br />
processed electronically.<br />
Now this has caused something of<br />
a headache as most regulatory bodies<br />
do not yet have fully automated<br />
processes for applications for entry<br />
into the profession or renewals. In<br />
addition the UK regulatory bodies<br />
have maintained that original copies<br />
of certificates must be provided and it<br />
is in the public interest for this<br />
requirement to be maintained.<br />
A further issue for the legal<br />
profession is the question of deemed<br />
authorisation. Again the emphasis on<br />
swift access to markets led to a<br />
provision in the Services Directive,<br />
whereby if an individual (e.g. a tour<br />
operator) had completed the relevant<br />
formalities to supply their service and<br />
the deadline for responding had<br />
passed, that individual would be<br />
deemed to be authorised to supply<br />
their service in the UK. However, the<br />
Law Society of Scotland had argued<br />
that this is not appropriate for the<br />
legal profession and, along with the<br />
Solicitors Regulatory Authority for<br />
England & Wales, lobbied the<br />
Ministry of Justice for a system of<br />
deemed refusal justified on overriding<br />
reasons of public interest.<br />
States of readiness<br />
Given the scale of reforms, there is<br />
concern that a number of member<br />
states may not have their<br />
implementing provisions in place in<br />
time. Business organisations are<br />
concerned about this leading to a<br />
patchwork of rules and systems, the<br />
very thing the Services Directive was<br />
due to combat. However, the UK<br />
intends to meet the deadline and the<br />
legal profession, consumers and<br />
business should be ready for it.<br />
Julia Bateman is Head of the Law<br />
Societies Joint Brussels Office.<br />
e: Julia.Bateman@lawsociety.org.uk<br />
www.journalonline.co.uk
<strong>Professional</strong> <strong>briefing</strong> Discipline Tribunal<br />
Scottish Solicitors<br />
Discipline Tribunal<br />
This month’s cses concern a solicitor covering up her<br />
non-solicitor husband’s dishonesty, and numerous<br />
breaches of the Accounts Rules and other matters<br />
Catriona MacFarlane<br />
A complaint was made by the<br />
Council of the Law Society of<br />
Scotland against Catriona Margaret<br />
MacFarlane, solicitor, Newton<br />
Mearns, Glasgow (“the respondent”).<br />
<strong>The</strong> Tribunal found the respondent<br />
guilty of professional misconduct in<br />
respect of her failure to disclose to her<br />
client the extent of her knowledge of<br />
the actings of her husband, a<br />
mortgage broker, her failure to advise<br />
her client timeously to seek separate<br />
independent advice, and her failure to<br />
withdraw from acting for her client,<br />
all in breach of the Code of Conduct<br />
for Scottish Solicitors 2002.<br />
<strong>The</strong> Tribunal censured the<br />
respondent, fined her in the sum of<br />
£2,500, and directed in terms of<br />
s 53(5) of the Solicitors (Scotland) Act<br />
1980 that for a period of three years,<br />
any practising certificate held or issued<br />
to the respondent shall be subject to<br />
such restriction as will limit her to<br />
acting as a qualified assistant to and to<br />
being supervised by such employer as<br />
may be approved by the Council or<br />
the Practising Certificate Committee<br />
of the Council of the Society.<br />
It was clear to the Tribunal that the<br />
respondent’s conduct amounted to<br />
professional misconduct. <strong>The</strong><br />
respondent had a duty by 7 February<br />
2007 to give a full disclosure to her<br />
client of her state of knowledge about<br />
missing funds appropriated by her<br />
husband and the fact that she was<br />
married to Mr MacFarlane. <strong>The</strong> Tribunal<br />
considered that there was not only a<br />
conflict of interest in this situation but<br />
also an absolute duty on the<br />
respondent to advise her client to seek<br />
separate independent advice. <strong>The</strong><br />
respondent’s conduct left her client in a<br />
vulnerable position for 19 days, which<br />
clearly caused a lot of distress to her<br />
www.lawscotjobs.co.uk<br />
client and his wife and left them<br />
exposed to an unacceptable risk. <strong>The</strong><br />
Tribunal considered that the<br />
respondent had acted very irresponsibly<br />
and that her conduct was completely<br />
contrary to the standards expected of a<br />
solicitor. <strong>The</strong> Tribunal considered that a<br />
restriction on the respondent’s<br />
practising certificate was required in<br />
order to ensure protection for the<br />
public and that the respondent is<br />
properly supervised. <strong>The</strong> Tribunal also<br />
imposed a fine of £2,500 to reflect the<br />
seriousness with which the Tribunal<br />
viewed the respondent’s behaviour.<br />
John James Smith<br />
Three complaints were made by<br />
the Council of the Law Society of<br />
Scotland against John James Smith,<br />
solicitor, John J Smith & Co, Dalmuir,<br />
Clydebank (“the respondent”). <strong>The</strong><br />
Tribunal found the respondent guilty<br />
of professional misconduct singly<br />
and in cumulo in respect of his failure<br />
to reply to correspondence from the<br />
Society; his failure to obtemper<br />
statutory notices issued by the<br />
Society; his failure to keep the books<br />
and records of his practice written up<br />
as required by Solicitors (Scotland)<br />
Accounts etc Rules 2001; his allowing<br />
his client account to operate in deficit;<br />
his failure to invest clients’ funds as<br />
required by rule 11 of the said Rules;<br />
his failure to lodge an accounts<br />
certificate timeously in accordance<br />
with rule 14 of the said Rules; his<br />
failure to comply with the Money<br />
Laundering Regulations in terms of<br />
rule 24; his failure to designate<br />
clients’ cheques with the client<br />
name on the payee line in terms of<br />
rule 6 of the said Rules; his failure to<br />
record deeds timeously; and his<br />
failure to obtain written authority for<br />
inter-client transfers in terms of rule 6<br />
fyi<br />
For findings on cases<br />
decided since 1995<br />
visit the Tribunal’s<br />
website at<br />
www.ssdt.org.uk<br />
of the said Rules.<br />
<strong>The</strong> Tribunal censured the<br />
respondent, fined him in the sum of<br />
£5,000 and directed in terms of<br />
s 53(5) of the Solicitors (Scotland)<br />
Act 1980 that the respondent’s<br />
practising certificate be subject to a<br />
condition that the books and records<br />
of the respondent’s practice be<br />
inspected by the Council of the<br />
Society no later than December 2009<br />
and thereafter at six-monthly intervals<br />
on six occasions the last of which is to<br />
take place no later than December<br />
2012, and that such inspections be at<br />
the expense of the respondent.<br />
<strong>The</strong> Tribunal was concerned about<br />
the various breaches of the Accounts<br />
Rules and the fact that four separate<br />
inspections between February 2007<br />
and April 2008 had highlighted<br />
numerous failures. It is imperative<br />
that members of the profession<br />
comply with the Accounts Rules in<br />
order to maintain the highest<br />
standards of this profession. <strong>The</strong><br />
Accounts Rules are there to protect<br />
the public and the respondent’s<br />
numerous breaches of different rules<br />
were of serious concern. <strong>The</strong> Tribunal<br />
however noted that no one had lost<br />
money or suffered as a result of the<br />
respondent’s actions. <strong>The</strong> Tribunal<br />
was satisfied that the respondent’s<br />
basic integrity was not in question.<br />
<strong>The</strong> Tribunal also considered that a<br />
solicitor acting on behalf of a client in<br />
connection with a conveyancing<br />
transaction is well aware that he has a<br />
duty to record deeds or have these<br />
registered within a reasonable time.<br />
<strong>The</strong> Tribunal noted the<br />
respondent’s position as a sole<br />
practitioner and considered that, in<br />
the public interest, it would be<br />
appropriate for the Society to carry<br />
out additional six-monthly<br />
inspections of the respondent’s<br />
books, commencing December 2009,<br />
to ensure that the progress which had<br />
been made recently in keeping the<br />
practice books up to date was<br />
sustained and to ensure that the<br />
interests of the firm’s clients were<br />
protected.<br />
December 09 the<strong>Journal</strong> / 49
<strong>Professional</strong> <strong>briefing</strong> Web review<br />
This month, the web review returns to<br />
members of Faculty and considers the merits<br />
of some new(ish) advocates’ websites<br />
Back to the bar<br />
Black Chambers<br />
www.blackchambers.co.uk<br />
Having rebranded from Black Stable<br />
to Black Chambers, the time was<br />
probably right to invest in a fancy new<br />
website. <strong>The</strong> first thing to say is that I<br />
really like the new look (rainbow<br />
colours on a black background). <strong>The</strong><br />
site itself is very clean, very well laid<br />
out and easy to navigate.<br />
It is a simple enough proposition,<br />
taking a “brochure” approach,<br />
supplemented by a modest news<br />
section. <strong>The</strong> site makes use of<br />
considerably larger photographs of<br />
its members than other similar sites,<br />
making Black Chambers particularly<br />
suitable for good looking counsel.<br />
<strong>The</strong> only other point worth<br />
mentioning is that the CVs of each<br />
counsel available to download seem<br />
to be in more detail than you would<br />
normally expect, which I suppose can<br />
only be a good thing.<br />
<strong>The</strong> website of Black Chambers is a<br />
latecomer to the field of advocates’<br />
websites, but a very strong presence in<br />
that field already.<br />
Maurice O’Carroll<br />
www.mauriceocarroll.co.uk<br />
Maurice O’Carroll is an advocate and<br />
member of Terra Firma Chambers<br />
(www.terrafirmachambers.com). He<br />
is also the brother of Derek O’Carroll,<br />
the former author of this web review.<br />
His website has a fairly “traditional”<br />
look to it and, like that of Jonathan<br />
Mitchell QC (see below), has a<br />
masthead on one of the pages<br />
featuring a panoramic view of<br />
Edinburgh. Of the two, Maurice’s<br />
photo is bigger and better.<br />
<strong>The</strong> site is a very good one, and in<br />
particular the page offering articles<br />
and downloads is very useful –<br />
especially if you have an interest in<br />
planning or property law.<br />
However, it does upset me to note<br />
that the pages headed “My Services”<br />
and “Frequently Asked Questions”<br />
are completely blank. It is possible<br />
that Mr O’Carroll has not been asked<br />
any questions frequently; curiously,<br />
there is another page, “Areas<br />
50 / the<strong>Journal</strong> December 09<br />
Who writes<br />
this column?<br />
<strong>The</strong> website review<br />
column is written by<br />
Iain A Nisbet of Govan<br />
Law Centre<br />
e: iain@absolvitor.com<br />
All of these links<br />
and hundreds more<br />
can be found at<br />
www.absolvitor.com<br />
Covered”, where he sets out his<br />
specialisms.<br />
Finally, the words “Maurice<br />
O’Carroll advocate and counsel<br />
Scotland” which appears in a standard<br />
font at the top of every page (I<br />
presume for search engine purposes)<br />
are probably unnecessary and look a<br />
little bit amateur and/or needy.<br />
Laurence Kennedy<br />
www.laurencekennedy.com<br />
First, let me declare an interest in this<br />
website as I was involved in its recent<br />
update and redesign.<br />
<strong>The</strong> website has much the same<br />
content as the old one, but has been<br />
redesigned and tweaked. It covers<br />
much of the same ground you would<br />
expect, including highlights from the<br />
areas in which Mr Kennedy practises,<br />
and a very useful section on<br />
“instructing counsel” which should be<br />
required reading for anyone instructing<br />
an advocate for the first time.<br />
Laurence Kennedy is one of the few<br />
advocates who “tweets” and there is a<br />
prominent link to his twitter feed on<br />
every page (http://twitter.com/<br />
advoc_8), where you can keep up to<br />
date with developments in his<br />
working and social life.<br />
Jonathan Mitchell QC<br />
www.jonathanmitchell.info<br />
Jonathan was the first at the Scottish<br />
bar to have his own website, and now<br />
is the first to have their own proper<br />
blawg. Strictly speaking, Scott Blair<br />
(www.scottblairadvocate.blogspot.<br />
com) was the first, but he only<br />
managed three posts, back in 2005,<br />
before giving up altogether, so I’m<br />
not counting that.<br />
<strong>The</strong> blawg is updated fairly<br />
regularly and has a number of<br />
followers from across the UK. During<br />
the recent furore over Abdelbaset Al-<br />
Megrahi’s release from prison on<br />
compassionate grounds, the three<br />
posts which appeared on this site<br />
were the subject of UK media<br />
comment, and some spirited debate<br />
among those who visit his site.<br />
Beyond the blawg itself, the site<br />
also carries other pages of information,<br />
headed “Who”, “What”, “Where”,<br />
“When” and “How”. <strong>The</strong> “When” page<br />
is a Google calendar featuring the Court<br />
of Session term dates, Murray Stable<br />
(www.murraystable.com) events and<br />
some other selected legal events. <strong>The</strong><br />
“How” page allows you to subscribe to<br />
the news feed, either by email or direct<br />
to your RSS news reader.<br />
Also worth a mention is the old<br />
Jonathan Mitchell website. You’ll find<br />
the link on the right hand side about<br />
half the way down the page. As the<br />
title tag states, “now retired but still<br />
accessible”, and still worth a<br />
rummage around.<br />
All of the content on this website<br />
can be reused under the terms of a<br />
Creative Commons Attribution-Share<br />
Alike 2.5 UK: Scotland Licence<br />
(creativecommons.org/licenses/bysa/2.5/scotland/)<br />
which, given that a<br />
certain Mitchell QC drafted the<br />
licence, seems only right and fitting.<br />
Alan Melvin-Farr<br />
www.alanmelvin-farr.co.uk<br />
Alan Melvin-Farr is an advocate with<br />
the Mackinnon Stable. He is also a<br />
barrister and has set up his own<br />
chambers in London. This is the<br />
website of that chambers. <strong>The</strong> site is<br />
fairly basic and suffers from a few<br />
technical glitches. However, it<br />
certainly looks the part, so a few<br />
glitches we can forgive.<br />
www.journalonline.co.uk
<strong>Professional</strong> <strong>briefing</strong> Book reviews<br />
Blackstone’s Employment<br />
Law Practice: 4th edition<br />
(Ed) John Bowers<br />
and others<br />
PUBLISHER: BLACKSTONE<br />
ISBN: 0 19 955661 8<br />
PRICE: £69.95<br />
A perennial complaint of the hard<br />
pressed employment practitioner is<br />
the need to lug around a variety of<br />
reference books and materials when<br />
attending hearings.<br />
For many reasons, not least the<br />
practitioner’s back, the fourth edition<br />
of Blackstone’s Employment Law Practice<br />
will prove a valuable resource to<br />
anyone, whether legally qualified or<br />
not, who advises and represents<br />
clients on employment-related issues.<br />
In one portable volume the authors<br />
have produced a practical and clearly<br />
set out guide to raising and fighting<br />
claims in the employment tribunals<br />
and higher courts.<br />
<strong>The</strong> book covers almost everything<br />
one needs to know about practice and<br />
procedure in the employment<br />
tribunal and the employment appeal<br />
tribunal, and ventures into more<br />
esoteric areas including higher<br />
(English) court procedures and<br />
references to the European Court of<br />
Justice, among others. Of particular<br />
practical use are the sections dealing<br />
with compromise agreements and the<br />
tax treatment of termination<br />
This text provides both the annotated<br />
statute and the criminal procedure<br />
rules. <strong>The</strong> fact that the text is in its<br />
eighth edition is testament to the<br />
payments, including an example style<br />
compromise agreement with drafting<br />
notes. Practical guidance is also<br />
included in relation to the issues that<br />
frequently arise in tribunal hearings<br />
in relation to calculation of awards<br />
and assessment of damages.<br />
Practitioners will also benefit from<br />
the appendices which include extracts<br />
from selected legislation, practice<br />
directions, codes of practice,<br />
summaries of the main cases<br />
frequently referred to in hearings<br />
and, more unusually,<br />
financial information<br />
(for example motoring<br />
costs guides) that will<br />
assist in calculating<br />
loss at hearing.<br />
While the majority of<br />
the text is concerned with<br />
tribunal and other courts’<br />
procedures (including remedies<br />
available), the book also addresses<br />
the substantive law in the areas most<br />
likely to arise at tribunal, including<br />
dismissal, redundancy,<br />
discrimination, equal pay, unlawful<br />
deductions and the transfer of<br />
undertakings. <strong>The</strong> authors do not<br />
claim to cover the substantive law in<br />
great detail, but these sections<br />
contain a useful summary of the<br />
main legal and practical issues.<br />
Tolley’s Employment Law<br />
Handbook, currently in its 22nd<br />
edition, takes the opposite<br />
approach to Blackstone’s, and<br />
Criminal Procedure (Scotland) Act 1995: 8th edition<br />
Dr Robert Shiels<br />
and others<br />
PUBLISHER: W GREEN<br />
ISBN: 0 414 01759 7<br />
PRICE: £82<br />
www.lawscotjobs.co.uk<br />
scholarly, concise and up-to-date<br />
annotations undertaken by four<br />
renowned experts in the field of<br />
criminal law.<br />
Editions of annotated statutes are<br />
generally seen as not being a<br />
substitute for textbooks on the chosen<br />
area. While this is equally true in<br />
criminal procedure, the annotations to<br />
this statute are so clear and readable<br />
that they provide an excellent<br />
grounding for understanding the<br />
Suggestions<br />
for future<br />
books<br />
<strong>The</strong> Book Review<br />
Editor is David J<br />
Dickson. Books for<br />
review should be sent<br />
c/o <strong>The</strong> Law Society<br />
of Scotland, 26<br />
Drumsheugh Gardens,<br />
Edinburgh EH3 7YR<br />
is primarily designed as a reference<br />
book dealing with the substantive<br />
law, rather than a guide for<br />
practitioners in the tribunal.<br />
Tolley’s is stronger on black letter<br />
law, though in practice, for the upto-date<br />
legal position, practitioners<br />
are likely to refer to Harvey on<br />
Industrial Relations & Employment<br />
Law, or IDS online.<br />
Where appropriate, Blackstone’s<br />
highlights the differences in legislation<br />
between Scotland and England,<br />
though less attention is paid to the<br />
differences in the practice of tribunals<br />
north and south of the border in<br />
respect of matters including the use of<br />
witness statements (rare in Scotland<br />
but common practice elsewhere), the<br />
order of closing submissions, and the<br />
provision of skeleton arguments<br />
before the EAT (again not normal<br />
practice in Scotland).<br />
<strong>The</strong> law is up to date as at January<br />
2009. In an area of law that is subject<br />
to as frequent change as employment<br />
law, such volumes can quickly become<br />
out of date. It is promised that the<br />
book will be updated annually.<br />
In summary, although the book<br />
would have been stronger if it had<br />
cross-referenced the main text with<br />
the relevant cases summarised in the<br />
appendices, it is well presented and<br />
thorough, and will prove a useful aid<br />
to tribunal practitioners.<br />
Donald MacKinnon, Law at Work<br />
statute and its increasing number of<br />
sections (eight pieces of new<br />
legislation are taken into account in<br />
this edition) and their complexity.<br />
We were all taught that anyone<br />
appearing in court ought to have with<br />
them, any statute they intend to refer<br />
to. This text is an absolute must for<br />
anyone who practises before the<br />
criminal courts.<br />
David J Dickson<br />
December 09 the<strong>Journal</strong> / 51
In-house Annual meeting<br />
“Experience is<br />
something you<br />
get a split<br />
second after it<br />
would have<br />
been useful” –<br />
one of Robert<br />
Armour’s<br />
favourite<br />
quotes<br />
52 / the<strong>Journal</strong> December 09<br />
You are the one to whom everyone will<br />
turn to keep them out of trouble; but at<br />
the end of it all you may be the sole<br />
survivor. A bit oversimplified, but those<br />
were two of the points to come out of<br />
Robert Armour’s keynote address to the<br />
In-house Lawyers Group’s annual<br />
symposium last month.<br />
“Crisis management” was his<br />
theme, and if anyone can speak from<br />
experience on the subject it is Armour.<br />
<strong>The</strong> former general counsel of British<br />
Energy, the nuclear power generator,<br />
he arrived in the hot seat through<br />
takeovers of his previous employers,<br />
was there in 2002 when the company<br />
had to be taken over by the<br />
Government to prevent it collapsing,<br />
saw it through a re-flotation, and was<br />
still in post four years later when it in<br />
turn was bought up, by which time its<br />
value had trebled. On top of that, of<br />
course, nuclear power plants, though a<br />
“huge area for the UK economy” in<br />
Armour’s words, are not everyone’s<br />
idea of nice friendly businesses to run.<br />
“Crises are each different”, he<br />
commented. “<strong>The</strong>y make life intensely<br />
interesting; they raise the blood<br />
pressure; they give you something to<br />
look back on. You have to plan and<br />
give shape to your company’s<br />
response; there is a huge variety of<br />
different interests and influences; but<br />
you have only limited influence.”<br />
For British Energy, the real crisis<br />
point arose about seven years ago, at<br />
a time when the power generation<br />
industry as a whole was in difficulties.<br />
Electricity prices were as low as a third<br />
Calling<br />
the shots<br />
As corporate general counsel you<br />
could be the one making the key<br />
decisions in an insolvency situation,<br />
according to this year’s ILG<br />
keynote speaker Robert Armour.<br />
Peter Nicholson reports<br />
of present rates – and forecast to<br />
remain low for a decade! – and the<br />
company, which had a history of<br />
underinvestment in its plant, was<br />
“decried” in the market.<br />
Sole protection<br />
Without going into all the messy<br />
details of how British Energy was<br />
turned round, some points stand out<br />
for in-house advisers from Armour’s<br />
experiences. First of all, you, the board<br />
and the employees are all in uncharted<br />
territory – but everyone is going to<br />
turn to you, the “gatekeeper”, for<br />
advice to keep them right; and “you<br />
may be the only person between the<br />
directors and jail”.<br />
Keep yourself as an honest broker;<br />
and be fair and equitable, or it will<br />
backfire on you. Oh, and while you’re<br />
at it, they’ll probably expect you to<br />
manage the business as well.<br />
You may also, as a lawyer, be the<br />
only one who thinks and sees things<br />
differently from the directors: most<br />
boards know each other and they are<br />
probably all from the same mould.<br />
<strong>The</strong> one rule is, you pay for<br />
everything. All the fees, that is. You<br />
will need help from your external<br />
legal advisers; but you also have to<br />
control what is spent on them (“or<br />
you will get real grief”) – no easy<br />
matter when you have no bargaining<br />
power and they will probably<br />
demand to be paid weekly.<br />
<strong>The</strong>y will become your friends – but<br />
they also have fees to earn and<br />
reputations to protect.<br />
Don’t get yourself into “a<br />
paralysis of non-risk taking”. It’s<br />
important to be prudent; hindsight<br />
will be the test; but don’t be overpessimistic.<br />
Armour was not helped<br />
by advice from his external legal<br />
firm that said “maybe” in the 48<br />
hours before a key decision on<br />
refinancing was required.<br />
When the finger points<br />
Although an adviser, you may well<br />
find yourself in the spotlight. Think<br />
how your photo will look in the<br />
press. Watch what you say. <strong>The</strong> press<br />
will judge you and politicians will<br />
look for a scapegoat. Don’t expect<br />
fair treatment.<br />
You may also find yourself being<br />
quizzed by the FSA or other investigators,<br />
and having to answer questions like<br />
“Didn’t you see it coming?” Hindsight is<br />
a wonderful thing.<br />
How prepared were you?<br />
“Corporate crises overwhelm<br />
companies.” <strong>The</strong> old world has gone<br />
and you meet an entirely new group<br />
of people. <strong>The</strong>re is a “complete<br />
underworld” of lawyers and<br />
accountants who deal with distressed<br />
companies. <strong>The</strong>y are “much pushier<br />
and more self assured” than the<br />
people you are used to dealing with.<br />
But in Armour’s case they didn’t<br />
understand how a Governmentsponsored<br />
restructuring worked.<br />
Your board will probably go, but<br />
you can’t afford to be sentimental.<br />
Your duty now is to the creditors, and<br />
also to the business.<br />
www.journalonline.co.uk
Twists and turns<br />
Be imaginative; and be prepared for<br />
unexpected turns of events. As the<br />
energy market changed while his<br />
company was undergoing<br />
restructuring, Armour found some<br />
parties to agreements reached seeking<br />
to renegotiate them when they<br />
thought they were going to be<br />
disadvantaged, while others of course<br />
were equally keen to see them carried<br />
through. He even faced a general<br />
meeting when shareholders who had<br />
lodged a motion then argued against<br />
it being passed. At one point, to<br />
counter a group who were buying up<br />
shares in order to “derail” a meeting,<br />
he went to court in New York in order<br />
to have the company delisted – a<br />
tactic that has since been outlawed.<br />
Keep a focus on getting through. If<br />
you have a deal in your hand, take it.<br />
“<strong>The</strong>re might be a better one round<br />
the corner, but the chances of landing<br />
the fish are remote.” Whichever route<br />
you take will have drawbacks and<br />
pitfalls. <strong>The</strong> board will be looking to<br />
you to keep the right balancing act<br />
and to keep them out of jail.<br />
<strong>The</strong>y may also rely on you to read<br />
and advise on documents even if<br />
they are the ones who have to sign<br />
them. Summarise everything for<br />
them, and keep them informed<br />
about what you are doing.<br />
And yes, there is light at the end of<br />
the tunnel, even if it is a very different<br />
company that emerges. You may end<br />
up as the sole survivor; but the<br />
company “needs a history, a<br />
connection with the past, and to avoid<br />
making the same mistakes again”.<br />
You may think life will be<br />
extremely dull once it’s all over; but<br />
strangely, new challenges are just as<br />
likely to come your way! Now British<br />
Energy faces a whole new world of<br />
climate change, insecurity of energy<br />
supply, and (UK) Government policy<br />
once again for investing in nuclear<br />
power. Compare that to 2002, when<br />
it was seen as a company just<br />
caretaking its way to the end of its life.<br />
“If you do well,” Armour<br />
concluded, “you get a huge amount<br />
of satisfaction that you have probably<br />
played a pivotal role in keeping the<br />
ship afloat, saving jobs and<br />
shareholder value, and improving<br />
prospects for the future.”<br />
Though no longer in post as general<br />
counsel, Armour is still working as a<br />
consultant to EDF, the company that<br />
ultimately bought British Energy.<br />
However he is pondering his next<br />
move and looking to see what<br />
opportunities will arise. Surely life<br />
will be just a little quieter?<br />
www.lawscotjobs.co.uk<br />
L-r: Speaker Gary MacDonald, Jamie Millar, Janet Hood, vice chair Colin Anderson, speaker Rhona Harper, at the Hub<br />
Sector “rising to<br />
challenge”: Millar<br />
<strong>The</strong> in-house sector, just like its<br />
counterparts in private practice, is<br />
rising to the challenges of “the worst<br />
economic climate in living memory”,<br />
Jamie Millar, the Law Society of<br />
Scotland’s Vice President, told the<br />
meeting. That applied equally to<br />
those working for banks that had<br />
gone from being the powerhouses<br />
of the UK economy to relying on<br />
state assistance, local authorities<br />
experiencing major spending cuts,<br />
and to the wider corporate sector.<br />
“Many in-house teams”, he<br />
added, “have helped private practice<br />
by taking secondments from firms<br />
who have seen M&A work and<br />
property work reduce drastically.”<br />
While every job lost in the<br />
profession “is felt with regret<br />
throughout our collegiate<br />
profession”, there had not been the<br />
widespread job losses and<br />
insolvencies which some merchants<br />
of gloom had predicted.<br />
Looking to the future, the<br />
coming legislation to permit<br />
alternative business structures<br />
would be a seismic change of even<br />
greater effect than those that took<br />
place in the 1980s – the abolition of<br />
scale fees “and other ills which were<br />
predicted to bring about the end of<br />
the legal profession as we knew it”.<br />
Instead, what had been a<br />
“comfortable, introverted<br />
profession” was transformed into<br />
“the dynamic profession which runs<br />
large, successful and profitable<br />
businesses with increasing<br />
specialism and expertise”.<br />
Equally, with the present bill,<br />
“we should ask not what harm it<br />
can do for the profession, but<br />
what opportunities it can offer”.<br />
<strong>The</strong> Society intended to be a<br />
regulator and as such would work<br />
to ensure that solicitors were not<br />
competitively disadvantaged but<br />
could compete on a level playing<br />
field with other providers.<br />
Millar’s address was followed by the<br />
Group’s AGM, in which Chairman<br />
Janet Hood reported on her work as<br />
Group Convener for the<br />
Representation Committees under the<br />
Society’s new structure, particularly<br />
addressing the plight of the<br />
graduates, trainees and young lawyers<br />
currently facing an uncertain future.<br />
Through networking events with<br />
chambers of commerce and other<br />
business leaders they hoped to<br />
demonstrate the value of always<br />
having a lawyer on the team. In-house<br />
lawyers could help by enabling links<br />
for all openings in their organisations<br />
to be made available to the Society.<br />
She also commented on the<br />
continuing unawareness among<br />
law students of the existence of<br />
the in-house sector and the ease<br />
with which solicitors can move<br />
between it and private practice.<br />
“One of our main goals for future<br />
law fairs is to increase awareness<br />
of the ILG and its links with the<br />
Society… We are also looking into<br />
meeting with the university law<br />
schools and working at increasing<br />
our in-house profile among<br />
students as future career options.”<br />
<strong>The</strong> 1980s<br />
reforms<br />
transformed a<br />
“comfortable,<br />
introverted<br />
profession”<br />
into “the<br />
dynamic<br />
profession<br />
which runs<br />
large,<br />
successful and<br />
profitable<br />
businesses<br />
with increasing<br />
specialism and<br />
expertise”<br />
fyi<br />
<strong>The</strong> Society is networking<br />
with business to try<br />
and demonstrate the<br />
value of always<br />
having a lawyer<br />
on the team<br />
December 09 the<strong>Journal</strong> / 53
Property Missives<br />
“One size” is a<br />
Despite the movement towards standard missives even having united<br />
conveyancers in Edinburgh and Glasgow, Michael Smith argues that<br />
they have their limitations and could work against clients’ interests<br />
“Do not say, ‘Why were the old<br />
days better than these?’ For it is<br />
not wise to ask such questions”.<br />
(Ecclesiastes, 7.10)<br />
Having been conveying property<br />
for over 30 years, I am at risk of<br />
grumpy old conveyancer’s syndrome<br />
(recognisable to trainees and<br />
secretaries everywhere). In gentler<br />
times, I had an article published in the<br />
<strong>Journal</strong>, February 1993, 60, criticising<br />
both the philosophy and the content<br />
of the early attempts at standard<br />
missives. Despite a rearguard action<br />
by many experienced practitioners,<br />
standard missives seem to be here to<br />
stay. <strong>The</strong> latest version, the Combined<br />
Standard Clauses (“CSC”), unites<br />
Glasgow and Edinburgh practice, a<br />
small miracle in itself.<br />
<strong>The</strong>re are some benefits to standard<br />
missives, but I worry about specific<br />
aspects of the CSC, and that the use<br />
of standard missives generally will<br />
lead to lazy conveyancing practice,<br />
resulting in stress to clients and a<br />
higher incidence of claims under the<br />
Master Policy.<br />
This article is not meant to be an<br />
academic one. Rather its purpose is to<br />
alert conveyancers to concerns<br />
expressed widely by practising<br />
solicitors, and to invite a discussion.<br />
Hopefully that discussion might lead<br />
to some changes in the content of<br />
standard missives, and how they are<br />
used. <strong>The</strong> issues are not black and<br />
white, but rather a question of balance.<br />
With due respect to those who drafted<br />
and approved the CSC, and other<br />
standard missives, I feel that the<br />
balance is wrong in some areas.<br />
Certainty v speed<br />
<strong>The</strong>se are mutually exclusive goals,<br />
and I would submit that the CSC,<br />
54 / the<strong>Journal</strong> December 09<br />
and other standard missives, have<br />
exchanged speed of conclusion of<br />
the bargain, which might be termed<br />
“uncertain certainty”, for genuine<br />
certainty. A quickly concluded CSC<br />
bargain will have numerous<br />
suspensive clauses. <strong>The</strong> main ones<br />
relate to alterations (clause 7), title<br />
conditions (clause 15), the property<br />
enquiry certificate (clause 19), and<br />
the coal report (clause 20).<br />
Clause 7, relating to alterations, is<br />
a minefield for the unwary. In these<br />
days of home reports, the alterations<br />
noted by the surveyor are clear for all<br />
to see at an early stage. With the<br />
longer lead-in time to sales, the<br />
selling solicitor should be ordering<br />
up the titles at an early stage,<br />
clarifying with the seller what<br />
additional work has been done, and<br />
checking all available documentation.<br />
<strong>The</strong> seller’s solicitor should then<br />
forward all documentation with his<br />
qualified acceptance, so both sides<br />
have full knowledge of any issues.<br />
In addition to this general<br />
observation, clause 7 is weak in<br />
specific areas. As an example,<br />
clause 7(a)(ii) requires the seller to<br />
produce “an unqualified… Letter of<br />
Comfort”. Virtually all letters of<br />
comfort are qualified to some extent.<br />
Far better, for certainty, that the letter<br />
of comfort is available and exhibited.<br />
At the very least the wording of clause<br />
7(a)(ii) should refer to a letter of<br />
comfort “in the standard form of the<br />
relevant Local Authority at the time of<br />
granting”. As a minor point, stamped<br />
building warrant plans are very rare,<br />
and there are copyright issues with<br />
local authorities and architects.<br />
In relation to title conditions, since<br />
a copy land certificate may be<br />
obtained immediately from Registers<br />
Direct, it must surely be preferable to<br />
exhibit this with a qualified<br />
acceptance. Such exhibition would<br />
fyi<br />
Practice varies among<br />
CML members as to<br />
what alternatives to<br />
NHBC documentation<br />
are acceptable<br />
cover not only the issues dealt with<br />
in clause 15, but the extent of the<br />
property would be specifically<br />
referred to, with the purchaser<br />
obliged to satisfy himself on that<br />
extent. Acting for a seller, I recently<br />
had a purchaser attempt to resile on<br />
the basis of the extent of common<br />
ground within the property title. I was<br />
able to point to the qualified<br />
acceptance, where I had enclosed the<br />
land certificate, and incorporated a<br />
provision indicating that acceptance<br />
included satisfaction on extent. <strong>The</strong><br />
purchaser duly settled.<br />
Clauses 19 and 20 have similar<br />
elephant traps. <strong>The</strong> property and coal<br />
reports can be exhibited almost at the<br />
date of settlement, but the purchaser<br />
then has 10 days to consider them, and<br />
if there is a problem, the seller then<br />
has six weeks to rectify the problem. In<br />
theory, therefore, two months could<br />
pass following the date of entry with<br />
both sides unsure of whether there is a<br />
bargain or not. In a chain situation,<br />
www.journalonline.co.uk
dodgy fit<br />
that could be a disaster. Again, in these<br />
email days, why not exhibit the reports<br />
with the qualified acceptance? An<br />
additional benefit is that early<br />
knowledge of problems will allow<br />
tidy-up work to be done long before<br />
an offer is even received.<br />
Conclusion: a bargain with few, if<br />
any, suspensive conditions, taking<br />
slightly longer to conclude, is far<br />
preferable to a fast, standard missive,<br />
bargain, with loose time limits and<br />
numerous “outs” for a reluctant<br />
purchaser. What is the rush?<br />
Purchasers’ solicitors are taking<br />
longer and longer to conclude a<br />
bargain anyway.<br />
Style v substance<br />
At seminars on the CSC, their<br />
wonders were extolled. I think we<br />
have all bought good “stuff” which<br />
lies, dust-sprinkled, in the garage,<br />
because we do not have the expertise<br />
to use it. Any missive is only as good<br />
as the person using it. <strong>The</strong> conclusion<br />
of truly mutually-agreed missives is<br />
not a question of having the “best”<br />
missive (although that helps), but<br />
being able to understand the various<br />
clauses, what they can do, and what<br />
they can’t do. Classically, the purpose<br />
of a good offer is to extract<br />
information from the seller.<br />
<strong>The</strong> CSC also do not avoid the<br />
need for the conveyancer to go<br />
through the terms of the bargain in<br />
detail with the client, explaining as<br />
required. I have heard it stated that all<br />
we need to do is send the client, or<br />
refer them to, a copy of the CSC, and<br />
possibly the client guide to the CSC.<br />
If we ask the client to come back to us<br />
with any questions, and they don’t,<br />
then “we are in the clear”.<br />
In addition to being very<br />
dubious law, I think this is asking for<br />
misunderstanding and trouble. <strong>The</strong>re<br />
is no substitute for a knowledgeable,<br />
experienced conveyancer going over<br />
missives in detail with a client. In that<br />
exchange of information, reflected in<br />
the substance of the subsequent formal<br />
letter, a conveyancer earns his fee.<br />
I see a drift towards missives being<br />
concluded by less well qualified staff,<br />
part of the general process of making<br />
www.lawscotjobs.co.uk<br />
<strong>The</strong> CSC also<br />
do not avoid<br />
the need<br />
for the<br />
conveyancer<br />
to go through<br />
the terms of<br />
the bargain in<br />
detail with<br />
the client,<br />
explaining<br />
as required<br />
law a “commodity”, to be packaged<br />
up and sold to the lowest bidder. We<br />
do our profession a huge disservice by<br />
accepting this drift. It may be a valid<br />
response to competition and lower<br />
profits, but then the profession will<br />
polarise into volume and niche<br />
practitioners. How will the Society<br />
equitably regulate those respective<br />
interests? Should my niche practice<br />
continue to share the professional<br />
indemnity risk of the volume<br />
conveyancer, as happens now?<br />
General points are always clearer<br />
when specific examples are given.<br />
So, to give a specific example of style<br />
versus substance, I refer to clause 14<br />
of the CSC, “New Home Warranty<br />
Schemes”. This looks good on the<br />
surface, and flexible. It refers to the<br />
provision of NHBC documentation,<br />
“or such equivalent new home<br />
warranty documentation as provided<br />
by any alternative warranty provider<br />
as approved by and acceptable to the<br />
Council of Mortgage Lenders”. <strong>The</strong><br />
problem comes when one reads the<br />
actual provisions of the CML<br />
Handbook in relation to such<br />
alternative warranties. <strong>The</strong> handbook<br />
contains the different requirements of<br />
the various lenders. Some lenders will<br />
approve some alternative warranty<br />
providers, but not others. Some<br />
providers are acceptable to lenders if<br />
their warranty is “unconditional”, but<br />
not otherwise. It is not a major point,<br />
but one day a purchaser’s lender will<br />
not accept an alternative warranty,<br />
when it may be acceptable to another<br />
lender. Quid iuris?<br />
Conclusion: unless the terms of<br />
standard missives are fully understood<br />
and intelligently applied to the<br />
particular circumstances of client and<br />
property, the risk is that more errors will<br />
arise. This will result in a higher claims<br />
incidence, and a general lowering of<br />
standards in the profession.<br />
Clients’ interests<br />
v solicitors’ interests<br />
<strong>The</strong>re is a tension in conveyancing<br />
between the adversarial and the<br />
consensual, and there always will be.<br />
<strong>The</strong> philosophy underpinning<br />
standard missives is that of the<br />
reasonable selling solicitor and the<br />
reasonable purchasing solicitor, and<br />
the bargain they might come to over<br />
tea and crumpets. <strong>The</strong> problem is<br />
that our clients may not want us to<br />
be reasonable.<br />
Our clients may not be reasonable<br />
people. <strong>The</strong>y may have a questionable<br />
title, may quietly have removed a wall,<br />
or may have been fighting with their<br />
neighbours for years. If we all use the<br />
same missives, any departure from the<br />
norm will be obvious. Of course we all<br />
have professional obligations to one<br />
another, but these are limited, and our<br />
prime obligation is to act in the best<br />
interests of our clients. By advocating a<br />
standard form of missives, are we<br />
potentially putting our own interests<br />
above those of our clients?<br />
I think we also have to be clear<br />
whether we are members of a<br />
profession, or just in business to<br />
maximise our profit levels. Frequently,<br />
at seminars, I hear clients spoken of as<br />
if they are the enemy. We are to put<br />
our defences in first, crafting our fivepage<br />
terms of engagement letters to<br />
reduce risk practically to zero by<br />
putting our clients on notice of their<br />
responsibilities (high) and ours<br />
(minimal).<br />
Of course there are valid reasons for<br />
making mutual responsibilities clear.<br />
However, in my opinion, standard<br />
missives are, like terms of engagement<br />
letters, seen as part of our defence,<br />
rather than part of our service to our<br />
clients. <strong>The</strong> argument is this: if we are<br />
all using the same missive, we can’t be<br />
negligent. So the avoidance of<br />
negligence becomes the prime<br />
concern, along with ease of conclusion<br />
of bargains. We gradually slide from<br />
being professionals to businessmen.<br />
Magic words<br />
Buying and selling property cannot<br />
be reduced to a formula. Standard<br />
missives have the potential for<br />
making us believe there is such a<br />
formula, and by using that formula<br />
(“magic words”), we somehow do the<br />
work without effort and intelligence.<br />
Without care, we will devalue our<br />
professional expertise, and fail our<br />
clients. I am gratified to see many<br />
independently-minded solicitors still<br />
using their own styles of offer. Some<br />
of the offers are 52 clauses long, and<br />
those solicitors ought to be charged a<br />
fee by the selling solicitor for the extra<br />
reading involved. Some of the offers<br />
have been distilled to 13 clauses, and<br />
are the most dangerous.<br />
Michael Smith is principal of Mike<br />
Smith & Co, Solicitors, Lenzie<br />
December 09 the<strong>Journal</strong> / 55
Property News<br />
Society advises<br />
on Park decision<br />
<strong>The</strong> Conveyancing Committee<br />
has considered the implications<br />
of the decision in Thomas Park,<br />
Petitioner [2009] CSOH 122 for<br />
the current practice of relying on<br />
the terms of missives sent initially<br />
in electronic form before the<br />
arrival of the originals. This<br />
decision reinforced the legal<br />
position that delivery is required<br />
before a missive is binding.<br />
<strong>The</strong> committee reaffirmed the<br />
Society’s existing guidance on<br />
electronic communications. <strong>The</strong>re is<br />
a duty on a solicitor to follow up a<br />
fax or email (unless the email<br />
contains a digital signature creating<br />
a binding contract) of a contractual<br />
document with the original as soon<br />
as possible. If the solicitor is<br />
instructed by the client not to send<br />
the hard copy, that fact must be<br />
communicated to the other solicitor<br />
immediately and the solicitor must<br />
withdraw from acting if the client<br />
cannot be persuaded to withdraw<br />
such instructions.<br />
Furthermore, if a solicitor is not<br />
sure whether a contractual<br />
document can be sent, a fax or<br />
email should not be sent of it.<br />
<strong>The</strong> committee agreed that in the<br />
light of existing practice it would<br />
be in the interests of the<br />
profession for the law to be<br />
changed as soon as possible to<br />
enable electronic missives.<br />
56 / the<strong>Journal</strong> December 09<br />
<strong>The</strong> new year typically heralds several<br />
changes in a variety of business areas.<br />
One such area to witness change is<br />
the conveyancing framework and<br />
instructions issued by lenders to<br />
solicitors and licensed conveyancers<br />
acting for them in property sales.<br />
<strong>The</strong> Building Societies Association<br />
(BSA) will be introducing a new set of<br />
mortgage instructions on 1 January<br />
2010. <strong>The</strong>se instructions aim to ensure<br />
all BSA members benefit from a<br />
complete standard set of conveyancing<br />
instructions, which they may not<br />
otherwise have. It prevents the need for<br />
individual lenders introducing<br />
separate instructions for themselves.<br />
Scotland, as you would expect, has its<br />
own set of instructions. <strong>The</strong>re are also<br />
versions for lending taking place in<br />
England & Wales, Northern Ireland, and<br />
the Isle of Man. Each version reflects<br />
local lending issues and property law in<br />
each of these jurisdictions.<br />
<strong>The</strong> BSA package will provide<br />
common instructions for all users, as<br />
Registers of Scotland<br />
Turnaround times as at 21 November 2009<br />
<strong>The</strong> Keeper’s turnaround targets for 2009-2010, endorsed by Scottish Ministers, are set to drive<br />
continuous improvement in RoS’s performance. This year the targets again set specific timeframes<br />
rather than relying on averaging. <strong>The</strong> targets and performance are as follows:<br />
Where it is in the Keeper’s power and is legally appropriate, to complete the recording and registration of:<br />
Target: 80% of standard first registration applications<br />
within 70 working days.<br />
8,340 received since 1 April 2009<br />
4,818 despatched of which 4,497 (93.3%) within<br />
70 working days<br />
321 (6.7%) despatched in more than 70 working days<br />
3,522 (42.2%) received since 1 April are in process<br />
BSA brings in<br />
standard instructions<br />
<strong>The</strong> Building Societies Association is introducing<br />
a standard set of mortgage instructions, intended to<br />
perform for members the same function as the CML<br />
Handbook, as Amir Ghani explains<br />
<strong>The</strong> lender,<br />
whether a<br />
building society<br />
or not, will<br />
clearly set out in<br />
their initial<br />
contact with the<br />
relevant<br />
practitioners<br />
the basis that<br />
they are being<br />
instructed upon<br />
Target: 80% of dealings with whole within 30 working<br />
days, with no dealing taking longer than 100 working days.<br />
94,044 received since 1 April 2009<br />
83,328 despatched of which 66,942 (80.3%) within<br />
30 working days<br />
16,386 (19.7%) despatched within 31 to 100 working days<br />
10,716 (11.4%) are in process<br />
0 despatched in more than 100 working days<br />
well as enabling individual lenders to<br />
set out their specific requirements (SRs)<br />
to reflect their lending practice that<br />
conveyancers will need to comply with.<br />
<strong>The</strong> instructions are being introduced<br />
on a voluntary basis and it is for<br />
individual building societies to<br />
determine, in line with other business<br />
decisions, whether they choose to<br />
adopt the BSA instructions. Many<br />
building societies have chosen to do so<br />
from January, though others may opt to<br />
use their own or alternative instructions.<br />
More confusion?<br />
<strong>The</strong> decision to introduce another set of<br />
conveyancing instructions will meet<br />
Target: 80% of sasine writs within 20 working days,<br />
with no writ taking longer than 40 working days.<br />
36,759 received since 1 April 2009<br />
33,078 despatched of which 29,124 (88.0%) within<br />
20 working days<br />
3,954 (12.0%) despatched within 21 to 40 working days<br />
3,681 (10.0%) are in process<br />
0 despatched in more than 40 days<br />
www.journalonline.co.uk
some criticism from solicitors and<br />
conveyancers as unnecessary and a<br />
cause of confusion among practitioners.<br />
<strong>The</strong> BSA understands the concerns<br />
practitioners may have; however, in the<br />
development of the new instructions it<br />
has endeavoured to ensure that there is<br />
minimal disruption.<br />
First, there should in practice be little<br />
confusion as to which set of instructions<br />
should be followed. <strong>The</strong> lender, whether<br />
a building society or not, will clearly set<br />
out in their initial contact with the<br />
relevant practitioners the basis that they<br />
are being instructed upon.<br />
Furthermore, as building societies,<br />
and their lending subsidiaries, decide<br />
whether and when they adopt the<br />
BSA instructions, they should be<br />
notifying their solicitors and<br />
conveyancers of the change. Similarly,<br />
those involved in the conveyancing<br />
process, particularly those acting for<br />
building societies, will want to check<br />
with their lender clients whether they<br />
will be affected and familarise<br />
themselves with the BSA instructions.<br />
Adoption of the BSA Mortgage<br />
Instructions should not have any<br />
significant impact as to how<br />
practitioners do their job. In<br />
preparing any new standard it is<br />
essential that building societies, as<br />
well as the solicitors and licensed<br />
conveyancers instructed by them,<br />
should be able to apply the new<br />
instructions without substantial<br />
changes to procedures and process.<br />
<strong>The</strong> BSA instructions achieve this.<br />
<strong>The</strong> BSA has also taken this<br />
opportunity to make subtle but<br />
important improvements in the<br />
instructions. <strong>The</strong> BSA instructions are<br />
of the same standard as existing<br />
conveyancing instructions<br />
available to lenders. However, a<br />
benefit of the new set is their<br />
streamlined approach.<br />
Though existing instructions used<br />
by the industry have, on the whole,<br />
served lenders and conveyancers well,<br />
over time they have grown and<br />
developed into a labyrinth to navigate<br />
through. <strong>The</strong> BSA instructions are<br />
simpler, arranged in fewer sections<br />
and with fewer sub-headings, making<br />
the instructions more user friendly.<br />
Individual lender SRs are also more<br />
clearly set out, making them easier to<br />
find and understand. <strong>The</strong> BSA has<br />
made efforts to ensure that SRs are<br />
presented in a uniform way and adopt<br />
common language to help users.<br />
<strong>The</strong> BSA has engaged with a wide<br />
range of relevant stakeholders during<br />
the development of these instructions.<br />
<strong>The</strong> Law Society of Scotland and<br />
Registers of Scotland have both been in<br />
dialogue with the BSA as the framework<br />
was finalised. <strong>The</strong> Royal Institute of<br />
Chartered Surveyors has also been<br />
consulted on issues affecting valuers.<br />
<strong>The</strong> instructions will be supported<br />
by guidance tools, all of which will be<br />
available online from the BSA website.<br />
<strong>The</strong> BSA Mortgage Instructions will<br />
be available in full on the BSA website<br />
from 1 January. Further information on<br />
the instructions is available from the<br />
BSA at www.bsa.org.uk/policy/<br />
policyissues/mortgages/bsa_mortgage_<br />
instructions .<br />
Amir Ghani is policy adviser,<br />
Mortgage Policy Team at the Building<br />
Societies Association<br />
Central gets its own SPC<br />
<strong>The</strong> first new solicitors’ property<br />
centre to be opened in Scotland<br />
since 1994 has been set up by the<br />
Glasgow Solicitors Property Centre<br />
(GSPC) and a group of leading<br />
solicitor estate agents in central<br />
Scotland.<br />
Central Solicitors Property Centre<br />
(CSPC) will advertise homes for sale<br />
across Scotland’s central belt, with a<br />
network of participating firms with<br />
offices in every major town including<br />
Alloa, Bathgate, Bo’ness, Denny,<br />
Grangemouth, Falkirk, Linlithgow<br />
and Livingston.<br />
Until now the area has been<br />
www.lawscotjobs.co.uk<br />
Already over<br />
400 properties<br />
are for sale on<br />
www.central<br />
spc.co.uk.<br />
A property<br />
newspaper<br />
will follow in<br />
January, linked<br />
to the GSPC<br />
property paper<br />
fyi<br />
<strong>The</strong> BSA Mortgage<br />
Instructions will be<br />
available in full on the<br />
BSA website<br />
www.bsa.org.uk<br />
from 1 January<br />
served by the Edinburgh or Glasgow<br />
solicitors’ property centres, which<br />
post properties for sale to each<br />
other’s sites, but the new centre will<br />
provide a focus on the districts<br />
between the two cities.<br />
Already over 400 properties are<br />
for sale on www.centralspc.co.uk. A<br />
property newspaper will follow in<br />
January, linked to the GSPC property<br />
paper.<br />
GSPC chief executive Bill Scouller<br />
predicted that CSPC would quickly<br />
become the established market<br />
leader in the central belt: “CSPC<br />
member firms already sell more<br />
Environmental<br />
reports:<br />
suggested<br />
terms<br />
<strong>The</strong> <strong>Professional</strong> Practice and<br />
Conveyancing Committees have<br />
considered whether solicitors are<br />
under any duty to advise clients<br />
for whom they are acting in a<br />
purchase of residential property, in<br />
relation to environmental matters,<br />
and specifically as to whether an<br />
environmental report should be<br />
obtained. <strong>The</strong> committees’ view is<br />
that conveyancing practitioners<br />
are not qualified to give advice in<br />
this connection and that they<br />
should accordingly include a<br />
clause in their standard terms of<br />
business indicating that<br />
environmental matters do not<br />
form part of their remit.<br />
RBS changes<br />
delivery rules<br />
With effect from 22 June 2009, the Royal<br />
Bank of Scotland Group has changed its<br />
title deeds delivery requirements for new<br />
residential mortgages granted by its RBS,<br />
Nat West & First Active brands. For most<br />
cases, title deeds delivery is no longer<br />
necessary. Full details of the new<br />
requirements can be found in Part 2<br />
(section 14.2) of the Lenders’ Handbook<br />
on the CML website.<br />
property between them in the<br />
central belt than any of their<br />
competitors. By co-operating to<br />
advertise all of those properties in<br />
one location, they create an<br />
invaluable resource for both buyers<br />
and sellers. As CSPC becomes an<br />
essential source of information for<br />
buyers on homes for sale, it will also<br />
become an essential marketing tool<br />
for sellers.”<br />
Founder members of the CSPC are<br />
Caesar & Howie, Drummond Miller,<br />
KW Law, Liddle & Anderson, RGM<br />
Solicitors and Estate Agents and<br />
Russel & Aitken.<br />
December 09 the<strong>Journal</strong> / 57
Property Climate change<br />
As the Copenhagen summit attempts to tackle climate<br />
change, Euan Sinclair questions the ability of one provision<br />
in the new Scottish Act to make much impact<br />
A new burden is born<br />
Nestling within the Climate Change<br />
(Scotland) Act 2009 is a provision<br />
that may have implications for any<br />
solicitor who is dealing with<br />
property, primarily for or with the<br />
Government or local authorities.<br />
When s 68 of the 2009 Act comes into<br />
force, it will amend the Title<br />
Conditions (Scotland) Act 2003 to<br />
insert a new s 46A, thus creating the<br />
first new personal real burden since<br />
land tenure reform came into effect<br />
on the appointed day.<br />
<strong>The</strong> new burden is to be called a<br />
“climate change burden” and its<br />
express purpose will be to reduce<br />
greenhouse gas emissions. <strong>The</strong> terms<br />
of the burden itself, which will be in<br />
favour of a public body or trust, or<br />
the Scottish Ministers, may only<br />
consist of an obligation for the<br />
burdened property to meet specified<br />
mitigation or adaptation standards in<br />
the event of it being developed.<br />
Meshing with the law<br />
As you might expect, the normal<br />
rules for drafting real burdens will<br />
still apply. It will be interesting to see<br />
how mitigation or adaptation<br />
standards can be enforced without,<br />
for example, falling foul of the “four<br />
corners” rule. <strong>The</strong> details for the<br />
measurement and quantification of<br />
such standards are usually to be<br />
found in extraneous legislation, such<br />
as the Energy Performance of<br />
Buildings (Scotland) Regulations.<br />
Although specification of an EPC or<br />
BREEAM rating is sufficient for<br />
contractual purposes, it is unlikely to<br />
translate well into a real burden. It is<br />
possible – it will probably just<br />
require a long schedule.<br />
Given that an obligation to<br />
mitigate or adapt beyond any<br />
planning requirement might have a<br />
serious negative impact on value,<br />
local authorities will be mindful of<br />
their duty in terms of s 74 of the Local<br />
Government (Scotland) Act 1973 to<br />
obtain the best value for property<br />
disposals, and therefore they may<br />
58 / the<strong>Journal</strong> December 09<br />
think again before deploying this<br />
burden voluntarily when they dispose<br />
of property.<br />
But which public bodies?<br />
<strong>The</strong> section as passed in fact falls a<br />
good distance short of Sarah Boyack<br />
MSP’s original amendment, which<br />
provided that the climate change<br />
burden would benefit a person or<br />
body with functions of a public<br />
nature. It was decided at committee<br />
stage that this admirable piece of<br />
draftsmanship should be “reworked”<br />
by the civil servants. Did the<br />
parliamentary draftsmen instead<br />
substitute the definition of “public<br />
body”, meaning a Scottish public<br />
authority within the meaning of the<br />
Freedom of Information (Scotland)<br />
Act 2002 as is separately provided in<br />
s 44 of the 2009 Act, so as to cover the<br />
whole Scottish public sector? Did<br />
they in fact try to improve it to<br />
include reference to UK public bodies<br />
as defined in the Freedom of<br />
Information (Scotland) Act 2000?<br />
Er, no. And here the story takes an<br />
unexpectedly quixotic turn. Despite<br />
It may well<br />
have been in<br />
the civil<br />
servants’<br />
minds that<br />
most climate<br />
change<br />
mitigation and<br />
adaptation<br />
standards will<br />
be enforced by<br />
means of<br />
planning<br />
conditions<br />
having world-leading climate change<br />
targets to meet, the civil servants for<br />
some reason decided that in<br />
reworking the section, the definition<br />
of a “public body” would apply (in<br />
addition to the Scottish Ministers and<br />
local authorities) to… conservation<br />
bodies. Hooray. As a result, the St<br />
Vincent Crescent Preservation Trust<br />
can impose a climate change burden<br />
on its property sold for development,<br />
but not Scottish Water, SEPA, Scottish<br />
Enterprise, HIE etc. So can Sir Henry<br />
Wade’s Pilmuir Trust, but not the<br />
Ministry of Defence, the Coal<br />
Authority or a health board and so on.<br />
Nor is it open to an individual or a<br />
company to impose a climate change<br />
burden as a personal real burden.<br />
Other means?<br />
It may well have been in the civil<br />
servants’ minds that most climate<br />
change mitigation and adaptation<br />
standards will be enforced by means<br />
of planning conditions. If a real<br />
burden is required then planning<br />
authorities can impose planning<br />
agreements. If the Parliament is as<br />
serious as it states it is in relation to<br />
leading the global efforts to tackle<br />
climate change, it could have adopted<br />
this useful measure into the public<br />
sector. Although adaptation or<br />
mitigation standards above what the<br />
rest of the market has to endure<br />
would inevitably impact on the<br />
bottom line of the Government’s<br />
capital receipts, it is a voluntary<br />
measure, and the Government could<br />
have been an exemplar to all of us to<br />
invest in energy efficiency. <strong>The</strong> recast<br />
of the Energy Performance of<br />
Buildings Directive is likely to require<br />
the (whole) public sector to take a<br />
lead in setting the standards.<br />
It seems an opportunity to lead has<br />
been lost. It may therefore be some<br />
time before this new type of burden is<br />
deployed in practice – if at all.<br />
Euan Sinclair is a professional support<br />
lawyer at Burness LLP<br />
www.journalonline.co.uk
Sidelines Manus Straw<br />
Manus Straw used to find himself in a spin over rotating departments<br />
How I learned<br />
to love the law<br />
I imagine back in the day the typical<br />
trainee was like Bob Cratchit,<br />
hunched over a single candle, chained<br />
(mostly metaphorically) to a clearly<br />
delineated set of tasks, and<br />
accustomed to getting the book<br />
hurled at him for misplacing that<br />
apostrophe on page 56. Now, of<br />
course, things are completely<br />
different. It’s a Blackberry that gets<br />
hurled, not a book.<br />
And the fun starts over again every<br />
time you change departments. As a<br />
trainee I saw myself as a legal globetrotter,<br />
drawing gasps of admiration<br />
as I shot through loopholes from any<br />
angle. This dazzling pretence would<br />
persist until an associate surveyed my<br />
first piece of work, whereupon they<br />
would promptly conclude I was less<br />
globe-trotter, more Delboy-Trotter. I<br />
soon learned to make sure my work<br />
wasn’t checked so carefully – by<br />
taking it to the nearest partner. I’m<br />
not saying the partners were lazy, but<br />
they had a lot on their plates (witness<br />
the length of their lunches).<br />
Changing departments was a<br />
terrific pain and was effectively like<br />
starting a new job each time. You had<br />
to constantly re-earn goodwill, learn<br />
each partner’s idiosyncrasies and<br />
work out all the weird politics: “Of<br />
course we haven’t been robbed – the<br />
partner’s room always looks that<br />
way”; “Don’t ever try to speak to that<br />
associate before 11am”; “Never<br />
mention weddings to our paralegal<br />
or she will cry”.<br />
At the end of the stretch each trainee<br />
had to give their successor a note of<br />
what had been happening. <strong>The</strong>se<br />
notes were usually more in keeping<br />
with the progress of their files as the<br />
trainee would have had it, rather than<br />
any rational reflection of what had<br />
actually occurred. <strong>The</strong> one rule was<br />
that it was good behaviour not to drop<br />
www.lawscotjobs.co.uk<br />
anybody else in it for past errors.<br />
Nevertheless one of these notes<br />
still got me into hot water with a<br />
particularly serious trainee. We had<br />
never hit it off, and this was<br />
exacerbated by the fact that I freely<br />
admitted I thought she was great<br />
looking – if perhaps a tad athletic. I<br />
would regale staff with tales of my<br />
botched attempts to woo the “Sturdy<br />
Stunner”, and cheer up secretaries<br />
that the Stunner had just bawled out<br />
during one of her frequent tantrums,<br />
by telling them that it was just the<br />
side effects of her steroids, or that she<br />
only kept all those files in her room<br />
so that she could use them as weights.<br />
I have no doubt that this hilarity<br />
got reported back to Sturdy, and<br />
when she barged into my new<br />
department, waving my note of work<br />
in my face, I feared for my life. (Even<br />
if we were finally getting up close and<br />
personal.) It turned out that she had<br />
just totally misread a sentence and<br />
jumped to conclusions. She barged<br />
back out and sent a terse email which<br />
was just shy of a proper apology. (I’m<br />
pretty sure that a while later the firm<br />
ended up using Sturdy on lots of<br />
advertising material, only for her to<br />
Some<br />
departments<br />
certainly had<br />
horror<br />
reputations.<br />
Worst of all was<br />
“Department<br />
Death”, neatly<br />
named after<br />
both the nature<br />
of the work and<br />
the nature of<br />
the staff<br />
leave the next month. Whoops!)<br />
Department rotation also left<br />
trainees waiting nervously to hear<br />
which seat they were getting next. (I<br />
never paid too much heed to rumours<br />
of bad seats. I reckoned that if a seat<br />
was that bad, I would just sneak into<br />
another room after 5pm and change<br />
it.) Some departments certainly had<br />
horror reputations. Worst of all was<br />
“Department Death”, neatly named<br />
after both the nature of the work and<br />
the nature of the staff.<br />
Once I took the opportunity to leak<br />
a draft rota, with destinations such as<br />
“hell in a hand cart”, “the job centre”,<br />
and so on. You can imagine my<br />
scepticism when an apparently<br />
genuine draft was circulated a week<br />
later. Its credibility was admittedly<br />
boosted by its having been found on<br />
the printer of the partner who had<br />
once driven away with the keys to the<br />
office safe still on his car roof. But I<br />
still wasn’t sure it could be relied on.<br />
For a start it was titled “Version 1”.<br />
Like “World War 1”, I couldn’t help<br />
thinking that there might be more to<br />
come. It also set out that the trainee<br />
with a family connection to the<br />
managing partner and the trainee<br />
who wore the plunging green jumper<br />
on Dress Down Friday were both<br />
going to Department Death. <strong>The</strong>re<br />
was no way that was going to happen.<br />
I was right. By fair means or foul, the<br />
official rota released a week later gave<br />
them the plum jobs, while remaining<br />
the same for most of the rest of us.<br />
Reports that “World War 1” and<br />
“World War 2” are to be renamed<br />
“those wee scuffles before it all kicked<br />
off over the altered rota at Manus<br />
Straw’s firm” are unconfirmed at the<br />
time of writing…<br />
Manus Straw is the pen name of a<br />
practising solicitor<br />
December 09 the<strong>Journal</strong> / 59
Sidelines Members abroad<br />
Working the world<br />
Going off to Pakistan to do volunteer work turned out to be<br />
a stepping stone to partnership in a mid-tier commercial<br />
firm in Sydney for Archie Smith<br />
What has been your career to date<br />
and how did you come to be<br />
working where you are?<br />
I did my traineeship with a long<br />
established Glasgow firm and got<br />
exposure to a mix of civil, criminal,<br />
property and estate work. After my<br />
traineeship I decided to stay at the<br />
same firm, becoming a partner after<br />
only a couple of years.<br />
While working I went back to<br />
university and studied for an MBA part<br />
time. It broadened my horizons. After I<br />
graduated, my wife and I decided to<br />
apply to do volunteer work. We got a<br />
joint posting with VSO in Pakistan. At<br />
the time it seemed like the next logical<br />
step, though in retrospect it was a huge<br />
leap. I resigned as a partner and a few<br />
months later was working as a<br />
volunteer with an NGO in rural<br />
Pakistan, helping it to establish local<br />
councils and assisting farmers with<br />
marketing, community building and<br />
micro-credit. Standing in fields<br />
discussing marketing, or making<br />
presentations to Government ministers<br />
on establishing local councils was a<br />
world away from practising law.<br />
When the project ended, we headed<br />
for Australia, and though I had initially<br />
intended not to re-enter the law, the<br />
various jobs offered were all in law.<br />
My first position was with a US<br />
company as one of their in-house<br />
counsel covering the Asia-Pacific region.<br />
It was a huge learning curve, dealing<br />
with legal issues from New Zealand to<br />
India. While working in-house I also<br />
requalified in Australia and obtained<br />
my practising certificate here.<br />
I missed the variety of clients, so<br />
went back into private practice,<br />
focusing on general commercial and<br />
commercial property law. Yet again it<br />
60 / the<strong>Journal</strong> December 09<br />
was a huge learning curve – property<br />
law in Australia compared to Scotland<br />
is “the same but different”. While<br />
clients are trying to achieve similar<br />
things, the way it is done, the<br />
procedure and terms can be vastly<br />
different. <strong>The</strong> firm I worked for got<br />
used to my idiosyncratic language,<br />
such as inhibitions (caveats in<br />
Australia) or dispositions (transfers).<br />
I’ve now worked for a couple of firms<br />
and in some ways feel more attuned<br />
to Australian law than Scots law; I<br />
think it would be another learning<br />
curve to practise in Scotland again!<br />
I became a partner in the property<br />
and banking division of my current<br />
firm a couple of years ago, dealing<br />
mainly in commercial property, joint<br />
ventures and construction contracts.<br />
In many ways my career has come full<br />
circle, with some interesting<br />
diversions along the way.<br />
Do you see yourself staying there<br />
long term?<br />
Definitely – we are well settled here<br />
and are Australian citizens.<br />
What do you like most about living<br />
and working where you are?<br />
<strong>The</strong> weather plays a big part. It is<br />
much more of an outdoor lifestyle<br />
here and a good place to bring up<br />
kids. Sydney has some great local<br />
beaches. We probably visit the beach<br />
at least once a week, summer or<br />
winter. Sydney is a vibrant city and<br />
there’s always something happening.<br />
As for work, Australians have a<br />
positive attitude and are usually<br />
prepared to give people “a fair go”.<br />
Are there any downsides?<br />
Australia is a long way away from most<br />
<strong>The</strong> firm I<br />
worked for got<br />
used to my<br />
idiosyncratic<br />
language, such<br />
as inhibitions<br />
(caveats in<br />
Australia) or<br />
dispositions<br />
(transfers)<br />
Both pictures: the view from the<br />
harbour ferry on the journey to work<br />
places – no more short trips to<br />
Europe! I also miss a shared history<br />
with friends. My story here started nine<br />
years ago, so it’s difficult for friends<br />
here to relate to things that happened<br />
before then. However when I catch the<br />
ferry to work, the sun shines and I pass<br />
the Harbour Bridge and Opera House,<br />
the upside outweighs the downside.<br />
What is the value of retaining your<br />
Law Society of Scotland<br />
membership?<br />
A UK qualification is well<br />
regarded here and being dual<br />
qualified can help. Being Scottish<br />
rather than English qualified adds a<br />
bit of uniqueness and is often a<br />
talking point.<br />
Do you miss Scotland?<br />
I miss long-standing friends and hill<br />
walking in the highlands. Somehow<br />
bush bashing in the Australian bush<br />
isn’t the same when you have to watch<br />
out for snakes rather than sheep!<br />
What would be your advice to<br />
anyone thinking of making a<br />
similar move?<br />
Go for it! Arrive with an open mind<br />
believing that it will work. It’s always<br />
better to experience something than<br />
to wonder if things could have been<br />
different!<br />
www.journalonline.co.uk
From the <strong>Journal</strong> archives<br />
50 years ago<br />
From “Corroboration by<br />
Averment?”, December 1959: “In<br />
the present chaotic state of the<br />
law of evidence it is not<br />
unknown for a party to attempt<br />
to eke out the insufficiency of<br />
his evidence by reference to the<br />
pleadings of his opponent… In<br />
the recent case of Wilson… 1959<br />
S.L.T. (Notes) 59, the Second<br />
www.lawscotjobs.co.uk<br />
Division impliedly disapproved<br />
of this tendency, while Lord<br />
Strachan was explicitly in favour<br />
of the technical view that only<br />
averments which were<br />
specifically and formally<br />
admitted should be regarded as<br />
being equivalent to proof.”<br />
25 years ago<br />
From “From the Editor”, December<br />
Sidelines Six of the best<br />
Louise Farquhar revisits what proved a popular subject last time round<br />
Six of the best...<br />
Winter wardrobe essentials<br />
As temperatures fall it’s time to dress up<br />
against wet days and chilly nights. A few<br />
well-chosen pieces can update your<br />
wardrobe and brighten your mood.<br />
Woolly jumpers, knitted scarves, raincoats<br />
and cosy hats are all essential attire.<br />
Here are my ideas:<br />
Mackintosh<br />
In 1823 Charles Macintosh (so spelled)<br />
created the first real waterproof fabric<br />
when he spread rubber over cotton. From<br />
this discovery the famous Mackintosh<br />
raincoat emerged, a piece of clothing that<br />
has become integral to combating squally<br />
weather across the world. Today the<br />
company, based in Cumbernauld, is an<br />
established global brand that combines<br />
updated technology with traditional<br />
techniques, employing only expert<br />
craftsmen to make the coats. As well as<br />
the classic design there are now many<br />
other styles – using vibrant colours to add<br />
a contemporary feel. <strong>The</strong> collections are all<br />
available online as well as in shops.<br />
www.mackintoshrainwear.com<br />
OdDesigns, hand knitted scarf<br />
Janet O’Donnell’s artistic talents are clearly<br />
visible in her range of hand-knitted scarves.<br />
She draws on the vibrant and everchanging<br />
colours in the Scottish landscape<br />
as well as the rich textures found<br />
throughout the land. Some of the pieces,<br />
such as the Cobweb scarves, are light and<br />
exotic whereas others are made from<br />
luxurious, thick chenille. Janet exhibits in<br />
galleries throughout the country and is<br />
happy to undertake commissions.<br />
www.oddesigns-scotland.com<br />
Harris Tweed<br />
Harris Tweed<br />
<strong>The</strong> Harris Tweed jacket has long been an<br />
essential item for a gentleman’s winter<br />
wardrobe. <strong>The</strong> classic jackets, which come<br />
in four different tweeds, are hand-woven by<br />
crofters using yarn from the local Stornoway<br />
mill. <strong>The</strong> fabric is inspected by the Harris<br />
Tweed Authority who then award the<br />
famous Orb trademark. Over 30 employees<br />
and 100 crofters benefit from the<br />
production of these garments. <strong>The</strong> singlebreasted<br />
design is very flattering and the<br />
leather buttons add that authentic touch.<br />
www.harristweedscotland.com<br />
Recycled by Design<br />
A good, woolly hat is ideal against the<br />
Scottish winter, but finding an attractive<br />
one is not that easy. Recycled by Design<br />
come to the rescue with their colourful<br />
handmade hats created from unwanted<br />
knitted jumpers. Jan Crocker, the founder,<br />
is based on the remote Orkney island of<br />
Papa Westray, where recycling is a<br />
fundamental part of life. Berets, beanies, a<br />
pill box and even an Orkney Viking design<br />
make up the range – all incorporating<br />
beautiful patterns and soft fabric.<br />
www.recycledbydesign.com<br />
William Lockie<br />
A cashmere jumper may seem like an<br />
unnecessary luxury but, from a practical<br />
perspective, it will keep you incredibly<br />
warm and is great for layering with other<br />
clothes. Pop one on for travelling to work!<br />
William Lockie have been making soft<br />
cashmere garments since 1874. <strong>The</strong>y<br />
claim their Hawick mill has the softest<br />
water running through it which enhances<br />
the silky, smooth feel of their fabric. <strong>The</strong><br />
jumpers are sold throughout the world by<br />
the best retailers.<br />
www.williamlockie.com<br />
1984: “Talking of<br />
Christmas, it seems that in<br />
this country of ours there is<br />
precious little peace and<br />
goodwill about. Ideologies of<br />
unspeakable intransigence are<br />
ranged against one another in<br />
mutual and total disrespect and<br />
distrust. How then can bitterness<br />
and rage be avoided when the<br />
confrontation of rigid dogmas<br />
Loch Sunart Yarns<br />
For people with little ones to look after,<br />
Loch Sunart Yarns make the most sublime<br />
toddler sheepskin slipper socks to keep<br />
tiny toes cosy in the inclement weather.<br />
<strong>The</strong>y are handmade using organically<br />
tanned sheepskin hides and hand spun<br />
organic wool from the fleeces of the Soay<br />
sheep. As well as being functional they<br />
are also very cute and good for the<br />
environment. <strong>The</strong>y are available by mail<br />
order from the company’s base in<br />
Ardnamurchan.<br />
www.lochsunart-yarns-buttons.co.uk<br />
For further ideas see:<br />
House of Bruar, Perthshire<br />
www.houseofbruar.com<br />
Marks and Spencers<br />
www.marksandspencer.com<br />
Recycled<br />
by Design<br />
becomes translated into the<br />
physical confrontation of human<br />
flesh and, all too often, blood?”<br />
(Who remembers the year of the<br />
miners’ strike?)<br />
December 09 the<strong>Journal</strong> / 61
Sidelines Books for pleasure<br />
One more legal fiction review, with a special offer to readers<br />
Holiday reading<br />
Daisy Chain (Gary Moffat)<br />
Gary Moffat is a partner with Burness<br />
and this is his first novel.<br />
Logan Finch is a lawyer, who<br />
almost has it all, but his former<br />
girlfriend Penny Grant is murdered,<br />
her 11 year old daughter Ellie is<br />
missing, and newly promoted DC<br />
Irvine investigates. Cahill, Finch’s best<br />
client and friend, runs a security<br />
business.<br />
<strong>The</strong> prologue, graphic and<br />
uncompromising, introduces the<br />
main characters in this tense novel<br />
that maintains a fast pace throughout.<br />
<strong>The</strong> action takes place over three days.<br />
<strong>The</strong> main characters are all driven to<br />
achieve their individual goals within<br />
Hearsay<br />
Lion into Scullions’ den<br />
Old soccer legends never die, it seems,<br />
but they occasionally turn up at the<br />
opening of lawyers’ offices.<br />
So ex-Celtic captain and Lisbon<br />
Lion Billy McNeill discovered when<br />
invited to do the honours at<br />
Hamilton firm Scullions’ new<br />
premises. <strong>The</strong> firm does not lack<br />
ambition, if photos of the former<br />
bank premises in Cadzow Street<br />
during the renovation work are<br />
Star struck<br />
Tods Murray are claiming a mention in credits for<br />
“Scotland’s first animated feature film created<br />
by husband and wife creative team Tessa and<br />
Sascha Hartmann”, due out next year. Sir<br />
Billi, Last Remaining Guardian of the<br />
Highlands reunites Sir Sean Connery and<br />
Dame Shirley Bassey (left) for the first time<br />
since their Bond days, both providing<br />
vocals, and features (strictly off screen) Tods<br />
partner Richard Findlay for signing up a<br />
strong cast, the music deals and generally<br />
keeping the project this side of the border.<br />
62 / the<strong>Journal</strong> December 09<br />
a limited time frame. <strong>The</strong> villains are<br />
more background characters, being<br />
seen as “foot soldiers”.<br />
As the story unfolds, so too the<br />
strengths and weaknesses of the main<br />
players appear. Ellie is determined not<br />
to give in without resistance and her<br />
retention of her father’s photograph<br />
maintains her faith in that<br />
relationship. She has no bargaining<br />
skills and so must seek other ways of<br />
avoiding harm. Her determination is<br />
mirrored in DC Irvine, who also has<br />
limited scope within which she has to<br />
function, though as an adult she has<br />
other experience to call on.<br />
<strong>The</strong> author’s attention to detail as<br />
in police procedure is commendable.<br />
anything to go by – not to mention<br />
the attendance of around 200 guests<br />
at the four partner family firm’s<br />
celebration.<br />
<strong>The</strong> <strong>Journal</strong> has previously featured<br />
Scullions’ investment in modern<br />
systems (October 2007, 30), and is<br />
pleased to see how it is paying off.<br />
But to finish the way we started,<br />
you’ve probably heard that old<br />
lawyers never die, they just… wait<br />
for it… lose their appeal.<br />
<strong>The</strong> whoops!<br />
corner<br />
<strong>The</strong> author’s<br />
attention to<br />
detail as in<br />
police<br />
procedure is<br />
commendable<br />
<strong>The</strong> ending is swift and leaves open<br />
the possibilities of Finch, Cahill and<br />
Irvine coming together in some future<br />
plot. <strong>The</strong> title of the book is symbolic<br />
of the tie-up between Finch and Ellie<br />
as something that is made simply, is<br />
easily damaged but can be repaired or<br />
even replaced.<br />
This novel is an excellent example<br />
of its genre and is a very worthwhile<br />
read. It is recommended.<br />
George Kennedy<br />
To order Daisychain at an exclusive price of<br />
£8.99 (including free p&p), simply call 01235<br />
827702, or email mailorder@bookpoint.co.uk,<br />
and quote reference “LAW SOCIETY”<br />
US attorney Orly Taitz has been fined $20,000<br />
by a Georgia district court for misconduct by<br />
“abusing her privilege to practise law”, and<br />
pursuing a political agenda, through repeated<br />
attempts to compel discovery of President<br />
Obama’s birth certificate in order to show that<br />
he was born outside the USA, and therefore<br />
not eligible to hold office and not the<br />
legitimate Commander-in-Chief – all in the<br />
attempt to prevent army reservist clients being<br />
deployed to Afghanistan, even pursuing one<br />
case after the client’s notice was revoked.<br />
www.journalonline.co.uk
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December 09 the<strong>Journal</strong> / 63
Classified<br />
64 / the<strong>Journal</strong> December 09<br />
SITUATIONS VACANT<br />
FARHAD HARIRCHIAN,<br />
DECEASED – Would any<br />
solicitor or other person<br />
holding or having<br />
knowledge of a Will<br />
granted by Farad<br />
Harirchian, latterly<br />
residing at Flat 12, 38<br />
Speirs Wharf, Glasgow<br />
G4 9TG and who died on<br />
24 October 2009 please<br />
contact Dykes, Glass & Co.,<br />
Solicitors, 974 Maryhill<br />
Road, Glasgow. Telephone<br />
number 0141 945 1917 or<br />
e-mail maryhilloffice@<br />
dykesglass.co.uk<br />
SPECIALIST SERVICES<br />
To advertise in<br />
the classified<br />
register contact<br />
Niamh O’Shea<br />
Telephone:<br />
0131 561 0023<br />
JOHN EDWARD<br />
MCMILLAN<br />
(DECEASED) – Would<br />
any Solicitor or other<br />
person holding a Will<br />
granted by John Edward<br />
McMillan formerly of<br />
4 Rouken Glen Road,<br />
Thornliebank, Glasgow<br />
and latterly of<br />
7 Speirsbridge Road,<br />
Thornliebank, Glasgow<br />
please contact Lavery<br />
Smith and Co Solicitors,<br />
49 Main Street,<br />
Thornliebank, Glasgow,<br />
G46 7SF (Executry<br />
Department) Tel 0141<br />
638 2141.uk<br />
www.journalonline.co.uk
www.lawscotjobs.co.uk<br />
December 09 the<strong>Journal</strong> / 65
66 / the<strong>Journal</strong> December 09 www.journalonline.co.uk
www.lawscotjobs.co.uk<br />
December 09 the<strong>Journal</strong> / 67