Professional briefing - The Journal Online

Vol 54 No 12 DECEMBER 09 www.journalonline.co.uk 

THE MEMBER MAGAZINE FOR THE LAW SOCIETY OF SCOTLAND 

Are solicitors 

warming to home reports, 

after the first year’s experience? 

ALSO INSIDE: SERVICE PROVIDERS / PARALEGALS / MISSIVES 

For online recruitment visit the new website www.lawscotjobs.co.uk 

Message 

for the bottle 

Could alcohol minimum 

pricing be legal? 

Hoops for 

lenders 

Impact of the 

Home Owner Bill 

VAT traps 

Dos and don’ts 

of the rate rise

Contents Vol 54 No 12 December 2009 

Regular items 

4 Current consultations 

5 Editor 

6 Update 

Next year’s CPD seminars 

7 President 

Festive film with a message 

8 People 

9 Opinion 

David Sandison: Gill & PI cases 

10 Letters 

Legal aid issues; ABS openings 

22 Professional news: Society 

(More in the box below) 

28 Notifications 

36 Professional practice 

36 Lawyers and LinkedIn 

37 Ask Ash 

38 IT: Service via Facebook 

40 Risk: client communication 

42 Professional briefing 

42 Criminal court 

44 Intellectual property 

45 Criminal practice 

46 Agriculture 

47 Sport 

48 European Union 

49 Discipline Tribunal 

50 Websites 

51 Book reviews 

52 In House 

Annual meeting addresses 

54 Property lawyer 

54 Standard missives 

56 Property news 

58 Climate change burdens 

59 Sidelines 

Manus; Working abroad; Six, etc 

63 Classified 

65 Recruitment 

Contact 

Journal 

staff and 

contributors 

PUBLISHERS 

The Law Society of Scotland 

26 Drumsheugh Gardens 

Edinburgh EH3 7YR 

t: 0131 226 7411 

f: 0131 225 2934 

e: lawscot@lawscot.org.uk 

w: www.lawscot.org.uk 

President: Ian Smart 

Vice-President: Jamie Millar 

Chief Executive: Lorna Jack 

EDITORIAL OFFICE 

Connect Communications 

Studio 2001, Mile End, Paisley 

PA1 1JS 

t: 0141 560 3018 

f: 0141 561 0400 

e: journal@ 

connectcommunications.co.uk 

w: www.journalonline.co.uk 

Editor: Peter Nicholson 

t: 0141 560 3018 

e: peter@ 


Review editor: David J Dickson 

Website news: Brian Henson 

e: news@ 


Design & production: 

Alan Morton, Paul McGinnity, 

Mark Davies 

Advertising sales: 

t: 0131 561 0023 

e: journalsales@ 


DISCLAIMERS 

The views expressed in the Journal 

of the Law Society of Scotland are 

those of invited contributors and 

not necessarily those of the Law 

Society of Scotland. The Law 

Society of Scotland does not 

endorse any goods or services 

advertised, nor any claims or 

representations made in any 

advertisement, in the Journal and 

accepts no liability to any person for 

loss or damage suffered as a 

consequence of their responding to, 

or placing reliance upon any claim 

or representation made in, any 

advertisement appearing in the 

Journal. Readers should make 

appropriate enquiries and satisfy 

themselves before responding to 

any such advertisement, or placing 

reliance upon any such claim or 

representation. By so responding, 

or placing reliance, readers accept 

that they do so at their own risk. 

On no account may any part of this 

publication be reproduced without 

the written permission of the 

copyholder and publisher, 

application for which should be 

made to the publisher. © The Law 

Society of Scotland, 2009 

ISSN: 0458-8711 

47 Handball, ref? 18 Bottom (prices) up 

Total Net 

Circulation: 10,833 

(issue specific May 09) 

Av. Net Circulation: 

10,712 (Jul 08-Jun 09) 

Subscription Information: 

Practising Certificate (inclusive cost)..................£635 

Non Practising Certificate 

(UK and Overseas, inclusive cost)......................£220 

Annual subscription UK ....................................£84 

Overseas ........................................................£108 

Trainees ............................................................Free 

www.lawscotjobs.co.uk 

12 Coloured opinions 

Features 

12 Wisdom of experience 

One year on, how well are home 

reports working? We canvass views 

from round the country 

15 Making a splash 

The Registers page: Registers Direct 

and ARTL in big combined launch 

16 Greatly indebted 

What the Home Owner and Debtor 

Protection Bill means for borrowers 

in arrears, and their lenders 

www.journalonline.co.uk 

38 Can they catch you like that? 

18 Strong drink arguments 

The EU law issues surrounding the 

proposed alcohol control measures, 

and why tobacco may be different 

20 What went down, goes up 

How the VAT rise affects transactions 

in progress, especially legal services – 

and a potential cash flow gain 

29 Service Provider Scheme 

Special supplement featuring 

suppliers in the Society’s scheme 

Society news> 

Turn to pages 22-28 for training website; 

solicitor advocates; member survey 

feedback; paralegals; Complaints 

Commission. Website: www.lawscot.org.uk 

December 09 theJournal / 3

Consultations 

Brian Dempsey’s monthly survey of consultations that might be of interest to practitioners 

… the point is to change it 

Credit and store cards 

The Department for Business, Innovation 

and Skills is reviewing regulations governing 

consumer credit and store cards and seeks 

views on such matters as minimum 

payments, unsolicited credit limit increases, 

and the repricing of existing debt. See 

consultation document and related 

materials at www.berr.gov.uk/consultations/ 

page53299.html . 

Respond by 19 January 2010 to cscr@bis.gsi.gov.uk . 

Default retirement age 

The UK Minister for Pensions and the 

Ageing Society wishes to hear the 

experiences of businesses and individuals 

on the operation of the default retirement 

age, why businesses use mandatory 

retirement ages, and what impact the 

raising or removing of the default 

retirement age would have on individuals, 

businesses and the economy. This appears 

to be an open invitation to express views, 

New training framework – HELP WANTED 

As we move towards implementation of the new training framework in 2011, 

the Education and Training Committee is seeking the input of the profession 

Working parties 

We are seeking volunteers for working 

parties which will finalise the detail of the 

various stages of the new route to 

qualification. These working parties are: 

Pre Diploma Training Contract – a 

review of this route into the profession, in 

the light of the Society’s commitment to 

promoting flexible routes into the 

profession. 

CPD working party – what will qualify 

as CPD in a flexible system, and how this 

should be captured, reflected on and 

reported to the Society. 

Requalification – a longer term project 

addressing new requalification rules under 

the new framework. 

4 / theJournal December 09 

with no consultation paper issued. 

Respond by 1 February 2010 to draevidence@bis.gov.uk . 

Vulnerable groups 

The Scottish Government has launched no 

fewer than nine consultation documents on 

the implementation of protection for 

vulnerable groups. Issues covered include 

“listing orders” for those deemed unsuitable 

to work with vulnerable people, and 

regulatory impact on public bodies, businesses 

and charities. See the various consultation 

documents (dated 10 November 2009) via 

www.scotland.gov.uk/Consultations/Current . 

Respond by 2 February 2010 to 

pvg.enquiries@scotland.gsi.gov.uk 

Asylum support 

In conjunction with the new draft 

Immigration Bill the UK Government wants 

to “streamline and reform the asylum 

support system”. See documents at 

Accreditation panel members 

We are seeking panel members to assist 

with accreditations of new Foundation 

(formerly LLB) and PEAT 1 (formerly 

Diploma) courses which will start from 

academic session 2011-12 across 10 

Scottish law schools. 

We are looking for members of the 

profession with experience of teaching or 

training, and members of the academic 

community. 

Accreditation dates will be set soon. 

The accreditation panels will meet to 

consider accreditation submissions from 

universities between spring 2010 and 

spring 2011. 

www.ukba.homeoffice.gov.uk/sitecontent/ 

documents/aboutus/consultations/221878/ 

simplifying-imm-law-new-framew1/ . 


AsylumSupportReform@homeoffice.gsi.gov.uk . 

New immigration rules framework 

The UK Government wants to “simplify” 

immigration law to improve enforcement. 

See documents at www.ukba.homeoffice. 

gov.uk/managingborders/simplifying . 


immigrationrules@homeoffice.gsi.gov.uk . 

And briefly … 

As noted last month, the Scottish 

Government seeks views on the delivery of 

the new general equality duty (respond by 

15 January 2010), and also on its draft code 

of practice in relation to the Education 

(Additional Support for Learning) (Scotland) 

Act 2009 (respond by 8 January 2010). 

Pilot organisations for PEAT 2 

(traineeship) 

PEAT 2 will introduce modern 

technologies to support both trainers and 

trainees, and will introduce new and 

improved assessment methods. 

We will be running a small pilot of 

PEAT 2 from September 2010, with a cross 

section of training providers. 

Indications of interest should be sent to 

consult@lawscot.org.uk . Please indicate 

what you are volunteering for in the 

subject line. 

www.lawscot.org.uk 

www.journalonline.co.uk

Difficult child 

Home reports have to enhance their credibility in the eyes of 

purchasers if they are to achieve what the Government intended 

Happy first birthday 

It was a difficult birth, so how has the 

infant scheme fared? 

A year after the introduction of 

home reports, published comment 

has still split along fairly predictable 

lines. The surveyor profession thinks 

they have been a great thing (some 

would say that it’s home reports that 

have kept them in business through 

the property slump); but somehow a 

large majority of solicitors still see 

things rather differently. 

Comments by solicitors to the 

Society, forwarded to me to inform 

this month’s lead feature, came in 

around 4:1 in favour of the view 

that they have been more of a 

burden than a help; and a straw poll 

at the High Street Conference at the 

end of November suggested a 

majority against, a smaller 

proportion neutral as to their effect 

and only a few who think they have 

been positively helpful. The views of 

the cross section whom I 

approached directly for their 

comments are reflected, I hope 

accurately, in the feature. 

What makes the overall picture 

harder to assess, however, is the 

degree of divergence of comment as 

to what happens in practice. Some 

solicitors report few problems with 

lenders; at the other end of the scale, 

at least one claimed that a purchaserinstructed 

valuation is routine. 

Whether purchasers are willing to 

take the home report at face value is 

equally variable, and it does not look 

as if this can be explained simply as 

due to regional variations. 

What should set a warning bell 


Editor 

Peter Nicholson 

Whether 

purchasers are 

willing to take 

the home 

report at face 

value is equally 

variable, and it 

does not look 

as if this can 

be explained 

simply as due 

to regional 

variations 

ringing for the Government, 

however, is the reports of significant 

differences between surveyors as to 

the current value of a property, and 

the encouragement this gives to 

sellers and their agents to prefer 

those known or believed to propose 

higher valuations, or even to adopt 

the “beauty parade” approach of 

asking for more than one desktop 

valuation and commissioning the 

home report on the basis of the best 

figure offered. 

The whole concept of the home 

report was sold on the basis that it 

would be an independent view that 

could be relied on equally by seller 

and purchaser, but if it is open to 

such manipulation, it will not meet 

this test and purchasers may well feel 

that they have no alternative but to 

commission their own valuation. 

Attitudes also differ as to whether 

there is anything wrong with such 

tactics, but it is a fact of life that 

parties to a transaction will each try 

and work the system to their 

advantage. If house sale and purchase 

in Scotland is really to be 

underpinned by a single third party 

assessment of the condition and 

value of a property, more will have to 

be done to underpin the integrity of 

that process. 

Reform, but not yet? 

A surprising item was reported in 

England recently when Henry 

Bellingham, the Conservative justice 

spokesman at Westminster came out 

as lukewarm over the liberalisation of 

the profession south of the border. 

He suggested that if in power, his 

Editorial 

party would slow down the process 

of legal services reform “if we 

possibly can”. 

Apart from the irony of Mrs 

Thatcher’s successors seeking to soft 

pedal on measures supposedly 

empowering of consumers and the 

market (and which have the weight 

of the big City practices behind 

them), one wonders just how such a 

policy could be given effect with the 

Act now in place and the new 

regulatory authorities pressing ahead 

with the necessary infrastructure. A 

likely five year period between the 

passing of the Act and its taking effect 

does not suggest undue haste, even if 

there is a very elaborate bureaucracy 

involved which we in Scotland are 

fortunately to be spared. 

It would be a further irony for 

Scotland if, having been given the 

initial push to reform on the back of 

the seemingly irreversible drive for 

change down south, we end up seeing 

the engine in England & Wales stall. 

But I still doubt it will come to that, 

even if there is a change of 

Government. 

Next year is already shaping up to 

keep us guessing; but more of that in 

good time. Season’s greetings to all. 


CPD EVENTS Coming soon 

Please view website for date announcements 

JANUARY 

Contingency Planning 

Company Law 

FEBRUARY 

2 ILG Seminar – Competition Law* 

11 ILG Seminar – Environmental Risk* 

18 CPD For New Lawyers – Learning to Manage Stress, Edinburgh 

25 ILG Seminar – Legal Update* 

Consumer Credit Road Show 

Mediation Conference 

Insolvency Road Show 

Licensing Conference 

MARCH 

04 ILG Seminar – Planning Law* 

11 ILG Seminar – Consumer Credit Act* 

16 ILG Seminar – Update on Professional Privilege Case Law* 

17 CPD For New Lawyers – Instructing Advocates, Glasgow 

18 ILG Seminar – Public Law* 

23 ILG Seminar – Information Management Law Update* 

25 ILG Seminar – Vulnerable Witnesses Act:An Update* 

Trusts & Executries for Paralegals 

The Law is IT Conference 

SOLAR Annual Conference 

Client Care Road Show 

Criminal Rights of Audience 

APRIL 

20 ILG Seminar – Is Public Procurement More Challenging?* 

21 CPD For New Lawyers – Instructing Advocates, Edinburgh 

27 ILG Seminar – Regulations* 

29 ILG Seminar – Changes in Legal Services Market* 

High Street Conference 

Client Care Road Show 

MAY 

04 ILG Seminar – Scottish Public Services:An Update* 

11 ILG Seminar – Health and Safety* 

18 ILG Seminar – Financial Update* 

25 ILG Seminar – IP Issues* 

Risk Management Road Show 

FOR FURTHER INFORMATION 

Details of venues, speakers, programmes and CPD hours are available on our 

website www.lawscot.org.uk/update . Update’s aim is to continue to produce 

good quality, affordable training for our members, and to help develop a 

comprehensive portfolio of events to support our members’ needs. If there are any 

events you would like us to run in 2010/11, or any comments you have about the 

Update events programme, please let us know.Also if you are interested in speaking 

at any of our events we would be more than happy to hear from you. 

Law In Scotland Annual Conference 

Client Relations Manager Training 

JUNE 

02 CPD For New Lawyers – Instructing Advocates, Inverness 

Anti-Money Laundering Road Show 

Planning for Retirement 

11&12 New Partners Practice Management Course 

Damages 

Immigration and Asylum Conference 

Personal Injury Conference 

SEPTEMBER 

Management Skills One Stop Shop Road Show 

Conveyancing Road Show 

Time Mastery for Lawyers – Frank Sanitate 

Employment Law Conference 

Private Client Conference 

Legal Advice for the older client 

OCTOBER 

Buying and Selling Rural Property 

Legal Aid Conference 

Legal advice for the older client 

Criminal Justice Bill Seminar 

Agricultural Conference 

Civil and Criminal Court Conference 

Arbitration Bill Seminar 

NOVEMBER 

Fraud Conference 

New Partners Practice Management Course 

Advocacy Skills 

Civil Litigation Drafting Skills 

Sole Practitioner Conference 

Please visit our website for seminar details and future dates for the CPD 

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

trainee solicitors and solicitors with up to five years’ PQE. Courses are 

free of charge, and will be held after hours. 

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

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

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

Update Department,The Law Society of Scotland, 

26 Drumsheugh Gardens, Edinburgh EH3 7YR. 

Legal Post, LP1 Edinburgh 1. 

Web: www.lawscot.org.uk 

Email: update@lawscot.org.uk 

Telephone: 0131 226 7411 Fax: 0131 476 8118

The President’s favourite Christmas film has 

a message for the age of deregulation 

Production values dictate that a 

publication such as the Journal has a 

two week advance deadline. 

From time to time, however, such a 

gap between composition and 

publication has an unfortunate 

feature. When considering the subject 

matter of this month’s epistle, and 

casting around for inspiration, 

the only suggestion offered 

was that I “write 

something festive”. By 

the time you read this 

that will be entirely 

appropriate but, as I prepare it, 

on the eve of the Feast of St Andrew, 

Christmas still seems some distance 

away. Few, if any, halls are for the 

moment holly bough-bedecked; even 

where the great Venn diagram with 

one subset of chestnuts and a second 

of open fires already intersects, little 

roasting yet takes place; and the 

herald angels, far from being in full 

voice, haven’t even got round to 

booking the room for their choir 

practice. 

In an attempt to put me in the 

mood, Wee Mo has brushed 11 

months’ dust off my CD of Phil 

Spector’s Christmas Album and 

loaded it on my iPod, but even that 

only prompted me to do a quick 

internet check on whether Spector 

ever appealed his murder conviction 

(he didn’t), rather than start 

imagining that Santa Claus’s arrival in 

town appears truly imminent. 

So, what to write? There are 

traditionally (sic) two possible 

themes for a piece of this nature. The 

first involves reflecting on the year 

past and anticipating the year ahead, 

but I think I’ll leave that for January. 

That is surely the Scottish way. 

The second involves some short 

Christmas parable. That’s the one 

I’m going for. 

My favourite Christmas film is Frank 

Capra’s It’s a Wonderful Life. It is, I 

should observe, a wholly appropriate 

choice for an Officer of the Law Society 

of Scotland. Not only does its plot 

revolve around a (failed) financial 

compliance inspection but it features 

inter alia a dance floor in need of a 

health and safety audit, a house whose 

purchase would surely never have been 

undertaken had it required a home 

report, and a credit crunch which 

make our own problems this year 

appear to be a mere bagatelle. It is, 

obviously, a sentimental film but in 

many ways it is not a wholly naive one. 

George Bailey, the central character, 

does become an invaluable, loved and 

respected figure to the town of Bedford 

Falls but that achievement comes at a 

price. He never gets to live out his 

wider dreams of world travel and, at 

the peak of his career, he clearly enjoys 

no great measure of personal wealth. 

Within our profession, there are 

countless George Baileys. This year 

has been dominated by potential ABS 

changes claimed by the consumer 

lobby to bring greater competition to 

the legal services market. I make no 

apology for being a continued 

cautious supporter of these changes, 

but we must be careful not to throw 

the baby out with the bathwater. High 

street solicitors provide a daily and 

invaluable advice service, for which 

little by way of fees is ever charged. 

Clients are given one-off advice, by no 

means all of it strictly legal advice, 

which nonetheless provides 

reassurance or guidance of almost 

unquantifiable benefit to them. Local 

solicitors also play a key role in 

bringing and applying their 

professional skills to the assistance of 

numerous voluntary organisations: 

churches, community groups, worthy 

President 

A tale for our times 


President 

Ian Smart 

We must be 

careful not to 

throw the baby 

out with the 

bathwater. High 

street solicitors 

provide a daily 

and invaluable 

advice service, 

for which little 

by way of fees 

is ever charged 

campaigns and local charities. 

In Bedford Falls, George Bailey runs 

a savings and loan, the US equivalent 

of a traditional British building 

society. In the 1980s and 90s the 

establishment consensus in the USA 

was that such institutions were 

inefficient and anachronistic. They 

had to be opened up to the rigour 

and opportunity of the market. 

Without the installation of 

appropriate safeguards, the result was 

disastrous. Insufficiently monitored 

pursuit of profit led to numerous 

cases of financial collapse and a not 

insignificant number of 

straightforward frauds. Millions of 

innocent savers were placed in danger 

of personal ruin. Even when federal 

intervention saved the day, choice, far 

from being widened as originally 

intended, was ultimately greatly 

curtailed. Further, the financial 

landscape which then remained was 

the one which itself collapsed so 

spectacularly over the last two years. 

The message of all this is not that 

change is bad. It is however that the 

consequences of change need to be 

thought through, and undesirable 

consequence anticipated by appropriate 

regulation. You have my assurance that 

in the ongoing ABS process, that 

principle will be at the very forefront of 

the Society’s deliberations. 

So that’s my festive message. 

All that remains is for me to wish all 

of you all a very merry Christmas and 

a happy and prosperous New Year. 

See you in 2010. 


People 

Onthemove 

ANDERSONS Solicitors LLP, 

Glasgow and Edinburgh, are 

delighted to announce a number of 

promotions within their Insurance 

Litigation and Dispute Resolution 

Department with effect from 

1 October 2009. Graham Laughton 

and Mary-Jo McKenna have been 

promoted to associates and 

Stephanie Wright has been 

promoted to senior solicitor. 

BRECHIN TINDAL OATTS, 

48 St Vincent Street, Glasgow 

and Hanover House, 45/51 

Hanover Street, Edinburgh, 

intimate that on 16 November 

2009 Jane Anne Steel was assumed 

as a partner of the firm. 

DAVIDSON CHALMERS LLP, 

Edinburgh, are delighted to 

announce the arrival of Sheila 

Webster, formerly of BELL & SCOTT, 

and Douglas Taylor, previously at 

DLA PIPER, to the firm as partners. 

Both Sheila and Douglas started 

with the firm on 2 November 2009. 

DICKSON MINTO, Edinburgh and 

London, intimate that with effect 

from 15 November 2009, Ewan 

Andrew John Sherriff ceased to be 

a partner of the firm. 

GRAY & KELLAS, Aberdeen and 

Ballater, intimate that they ceased 

trading on 31 October 2009. On 

that date the private client side of 

the business transferred to LAURIE 

Private Law consultant, Shield & Kyd 


& CO, LLP, Aberdeen, Peter Gray 

joined LAURIE & CO as a 

consultant and Caroline Davies and 

Fiona Barker retired from legal 

practice. Also on that date the legal 

aid side of the business and the 

criminal defence work transferred 

to GAVIN BAIN & CO, Aberdeen 

and Graham Morrison and John 

Hardie joined that firm as partners. 

HARPER ROBERTSON & 

SHANNON, 100 High Street, 

Annan, intimate the retiral of 

Michael Johnstone Shannon from 

the firm with effect from 30 

October 2009. The business will be 

carried on by Alan Brian Robertson 

and his associates. 

HBM SAYERS, Glasgow are 

delighted to announce that their 

associate Rachel Rough has been 

assumed as a partner with effect 

from 1 December 2009. 

Lili Hunter is pleased to announce the 

formation of her new employment 

law practice, LILI HUNTER LEGAL 

LIMITED and the appointment of 

Louise Spark as an associate with 

effect from 16 November 2009. 

Contact details: lili@lhlaw.co.uk and 

louise@lhlaw.co.uk . 

ALEX HUTCHEON + COMPANY, 

Aberdeen and Banchory, are 

pleased to announce the 

appointment of Stuart Ogilvie as a 

partner and Fayona Gordon as an 

The Edinburgh partners of Shield & Kyd who 

offer advice to clients in the residential, 

commercial and corporate sectors are delighted 

to announce the appointment of Euan Bell- 

Scott as a consultant in Private Law. 

Euan joins the firm after many years 

experience as a partner with Russel + Aitken 

and having held board appointments with 

various public bodies over the years and brings 

a wealth of experience with him. 

This appointment gives the firm of Shield & Kyd the ability to strengthen 

the services currently on offer to their existing clients. In addition, Shield & 

Kyd can now offer to other legal firms an added value service to them to 

assist in developing their Private Client business on an introductory 

commission sharing basis for Wills, Powers of Attorney, Guardianships and 

Executries. If this may be of interest, please contact Euan Bell-Scott on 0131 

228 2381 or e-mail etmbs@shieldandkyd.co.uk 

Stuart 

Ogilvie 

associate. Stuart and Fayona can be 

contacted at the firm’s main 

Aberdeen office at 248 Union 

Street, Aberdeen. 

Stuart Malcolm is pleased to 

intimate the establishment of 

STUART MALCOLM LLP, a niche 

specialist business law firm based in 

Oxford, England focusing on the 

United Kingdom’s science, 

technology and innovation sectors 

and knowledge-based and creative 

economies. Contact details: 

www.stuartmalcolmllp.com 

MAXWELL MACLAURIN, Glasgow 

and Edinburgh, intimate that with 

effect from 30 September 2009 

Linda H Hepburn retired as a 

partner in the firm. 

MELROSE & PORTEOUS, Duns 

and Eyemouth, and WALLACE & 

MENZIES, North Berwick, intimate 

that with effect from 30 October 

2009 Alan Anderson has retired as 

a partner of the firm. 

Ivan Ralph is pleased to announce 

that with effect from 1 November 

fyi 

Send your 

photographs for the 

people section to: 

peter@connect 

communications.co.uk 

Fayona 

Gordon 

Partner appointment, andersonbain & co 

Intimations 

for the people 

section should 

be sent to: 

Denise Robertson, 

Registrar’s Dept., 

The Law Society 

of Scotland, 

26 Drumsheugh 

Gardens, 


Email: 

deniserobertson@ 

lawscot.org.uk 

2009 he has commenced practice 

on his own account trading as 

McEWAN FRASER LEGAL, 15 

Annandale Street, Edinburgh EH7 

4AW; LP – 9, Edinburgh 2 (tel 0131 

524 9797; fax 0131 524 9799). Ivan 

was formerly a partner with LESLIE 

DEANS & CO, Edinburgh. 

Raymond G Mallon and Mark C 

Shepherd, both formerly qualified 

assistants with RUSSEL & AITKEN, 

Falkirk, have great pleasure in 

intimating that they have 

commenced in practice together 

under the firm name of RMS LAW 

LLP at 8 Lint Riggs, Falkirk FK1 1DG; 

LP 8, Falkirk. The firm telephone 

number is 01324 228587. 

A & W M URQUHART, Edinburgh, 

intimate that Christine Alexandra 

Mackenzie has joined the firm 

as a consultant with effect from 

2 November 2009, and that Chris 

Henderson Lucas has retired as a 

consultant with effect from 

30 September 2009. 

andersonbain & co, Solicitors of 10 Thistle Street 

and 243 George Street, Aberdeen are very 

pleased to announce that Kevin Rattray, formerly 

a founding Partner of Hutcheon Rattray & Co. has 

joined the firm as Partner to lead their expanding 

Property Sales Division. Kevin has vast experience 

of the local property market and his appointment 

reinforces andersonbain’s commitment to provide 

a first class and proactive estate agency service 

for their existing and new clients and confirms 

their confidence in the residential property market for the future. 

Commenting on his appointment Kevin said “I am absolutely delighted to be 

bringing my client base to andersonbain and am looking forward to developing 

the firm’s estate agency profile and services while maintaining the extremely 

high standards of customer care already fundamental to the firm”. 

For more information please contact us on 01224 626244 or mail@andersonbain.co.uk 


The Cabinet Secretary for Justice 

welcomed Lord Gill’s report in the 

Scottish Parliament by describing it as 

“hard hitting” and “the first system 

wide review in modern times”. The 

writer concurs in his appreciation of 

the work carried out by the review 

team; but questions whether two 

major proposals would improve 

access to justice. 

First, that “the existing shrieval 

complement would be reduced by 

around half the current number of 

permanent posts... there will be a 

substantial reduction in the number 

of Senators” (chapter 4, paras 213 and 

215). Secondly, that the privative 

jurisdiction of the sheriff court be 

increased to £150,000. 

The target of the report’s reforms is 

to “make Scotland an attractive forum 

for the resolution of disputes by 

providing high-quality judicial 

decisions at every level” 

(Introduction). There was a desire 

expressed that the international 

reputation of Scotland’s legal system 

should be retained. 

The report makes it clear that its 

approach is to follow that of Dame 

Hazel Genn in her recent Hamlyn 

Lectures, “Judging Civil Justice”. What 

Dame Genn in fact stressed in 

relation to English law and courts is 

that “appointing judges of the highest 

calibre and ensuring that candidates 

of the highest calibre put themselves 

forward for consideration is critical. 

This is about securing the quality of 

the judiciary for the future” (p 146). 

The current level of judicial decision 

making certainly will not withstand the 

impact of a 50% reduction in the 

number of sheriffs and substantial 

reduction in senators. The Lord 

President, in his address at the opening 

of the legal year on 18 September 

2009, commented: “the amount of 

commercial business attracted to the 

court continues to increase – surely a 

sign of the quality of treatment and 

disposal by the dedicated judges there”. 

If Court of Session commercial work is 

a success, where does this leave 

personal injury work? 

The report makes it clear that 

“practitioners on both sides point to 

economies and efficiencies of scale 

that accrue through centralising all 

but the lowest value personal injury 

litigation in the Court of Session” 

(para 4.153). In relation to civil 

justice it can be seen that currently 

there are successes in the Court of 

Session. The report however identifies 

that “one of the key areas for reform 

in the civil justice system is the sheriff 

court” (Introduction). 

It proposes that the privative 

jurisdiction of the sheriff court would 

increase to £150,000. There would be 

strict sanctions in expenses for noncompliance. 

The result of this increase would be 

twofold. First, a massive reduction in 

the Court of Session workload. 

Secondly there would be increased 

pressure on the sheriff court dealing 

with the additional personal injury 

workload, civil jury trials (in 

Edinburgh Sheriff Court), and 

ordinary and commercial cases at a 

higher level. One cannot identify how 

there will be an improvement in 

access to justice where the sheriff 

court, already identified as a major 

problem, is subject to an increased 

caseload at a higher value, requiring 

specialist judges and with half the 

existing shrieval complement. 

In relation to the Court of Session, 

the writer’s figures indicate that 

existing business would shrink to 

around a fifth of the current volume 

of cases. The report estimates a 

reduction of 64% of actions 

commenced in the general 

department. It is hard to see how any 

meaningful supreme court could 

function with the modest caseload 

remaining in the court. 

The Chapter 43 procedure will not 

Opinion 

From a personal injury practitioner’s perspective there are serious questions 

whether two major proposals in the Gill Review would improve access to justice 

A step too far? 


David 

Sandison 

David Sandison 

is Senior Partner, 

Lawford Kidd 

Solicitors, a personal 

injury specialist and a 

member of the Law 

Society of Scotland’s 

Civil Justice Committee 

be replicated in the sheriff court. It 

depends on a tripartite relationship 

involving Chapter 43, the Court of 

Session administration and judiciary, 

and the ability to involve counsel. 

The report confirms that litigation 

costs in Scotland are around half 

those of England. Insurers are not 

suffering excessive costs in Scotland. 

The current annual Court of Session 

personal injury caseload is around 

2,425. The bulk of these cases will be 

transferred to Edinburgh Sheriff 

Court, in which 232 PI actions were 

raised in 2008. Clearly the court will 

be unable to cope with this 

additional caseload and presumably 

these cases will be transferred back to 

use the unoccupied “estate” in the 

Court of Session (with a smaller 

contribution from court dues, which 

are less in the sheriff court). Whether 

this would be of any administrative 

cost saving benefit is doubtful, and 

even more questionable is whether it 

is an appropriate use of a court which 

is currently subject to redevelopment 

at an estimated cost of £63,000,000 

(freedom of information response 

from Scottish Court Service, 18 

November 2009). 

Are we heeding Dame Genn’s 

warning “The contribution of civil 

justice reviews to declining civil 

justice” (p 52)? 

A fuller version of this article can be found at 

www.journalonline.co.uk/extras 


Letters 

Facing 

up to ABS 

I wholeheartedly agree with 

Fiona Westwood (“Making the 

most of ABS”, Journal, October, 

38). Being commercially minded 

does not compromise our 

professionalism as lawyers – it 

can, in fact, enhance it. 

There is simply no logic in the 

argument that only those with 

law degrees are fit and proper 

people to run a legal services 

Send your 

letters to: 

Email: journal 

@connect 

communications. 

co.uk 

or by post to: 

The Editor, 

The Journal, 

Studio 2001, 

Mile End, 

Paisley PA1 1JS 

f: 0141 561 0400 


business and all external 

business partners will have a 

detrimental affect. Our clients 

are the ultimate judges of our 

services and our ability, and 

there is no doubt that lawyers 

could learn a great deal from 

other professional practices and 

business managers who are 

likely to have a far more realistic 

view of the influence of 

today’s consumer. 

The elephant in the room, 

however, is how and what we 

put in place to regulate the new 

ABS and how this will impact on 

traditional legal practices. 

I am writing in reply to the letters 

published in the two preceding issues 

from Jon Kiddie and Frank Irvine. The 

writers indicated their belief that 

there was a significant upward trend 

in abatement of civil advice and 

assistance accounts. 

The Board’s analysis of abatements 

suggests that this is not the case. Over 

the last five years, the value of civil 

advice and assistance abatements has 

remained close to the average of 

around 3% of the total of lodged 

accounts. In 2008-09, almost 78% of 

firms experienced abatements less 

than that average; of the remainder, 

almost two thirds had abatements 

totalling less than £1,000 for the year. 

Granted, this may not be the 

case for your two correspondents; 

however, it does appear to be the 

case more widely. 

There are areas of law where some 

firms may be aware of increased levels 

of scrutiny of their accounts. We 

regularly carry out trends analysis to 

identify significant changes in 

expenditure, reviewing the average 

cost of cases and comparing 

individual firms’ costs. As a result, we 

identify areas where the risks might 

be higher. Of late, analysis has 

identified that this would apply, for 

example, in mental health cases. 

In his letter, Mr Kiddie pointed to 

two particular issues. The first 

concerned confirmatory letters, a 

First, we have to set the bar 

high. It is in everyone’s interests 

to create a regulatory framework 

that protects the traditional 

ethos and values of the legal 

profession whilst embracing 

21st century business practices. 

When regulating on matters 

such as competency and quality 

controls we must also satisfy the 

highest possible standards of 

ethics and integrity. 

Secondly, we have to be 

prepared to face the fact that 

what is good for the corporate 

entity, i.e. the ABS, is also good 

for every law firm. High standards 

A&A abatements: 

Board’s response 

point also raised by Mr Irvine. There 

may be occasions where, for a variety 

of reasons, you consider a client 

cannot follow or may have difficulty 

in understanding advice provided 

during a meeting. If so, it may be 

appropriate to give the advice in a 

letter, following the meeting. Whilst, 

in principle, such a letter may form a 

reasonable charge, you should give 

the advice briefly, in plain English 

and focus it on the specific, material 

issues. We do not think it necessary 

(or reasonable) to send the client a 

lengthy letter repeating much of the 

advice given at a meeting, especially 

where it may not be readily 

understood. Where lengthy letters 

are claimed, we suggest that copies 

of the letters are sent in with the 

account so that we can make a more 

informed assessment of the 

appropriateness of the charge. 

Mr Kiddie’s second concern related 

to account entries. Following 

publication of his letter a colleague 

and I met with Mr Kiddie and 

through constructive discussion, it 

seemed we were able to resolve many 

of Mr Kiddie’s concerns over 

accounting entries. 

We very much hope that the 

Board’s project to move accounts 

online will help to reduce the need 

for abatements: the built-in fee rates 

make it impossible to claim on the 

wrong table of fees and, in addition, 

of practice are good for the 

customer, good for the rule of 

law and good for ourselves, and 

therefore should be applied to all 

forms of legal firm. 

Isn’t it interesting that Fiona’s 

perception of lawyers is that we 

“add time delays and costs”? 

She also comments that we are 

not seen as leaders. As Scots we 

are all familiar with the phrase 

“to see ourselves as others see 

us”. I can think of no better 

time than now to take heed of 

Robert Burns’ great saying. 

Alistair Morris, CEO, Pagan Osborne 

the process will improve both the 

speed and quality of 

communications on disputed 

accounting entries. Online account 

submission is already available for 

advice and assistance and ABWOR, 

and has the added cash flow benefit 

of payment of undisputed sums on 

account. Along with improvements 

to the existing online accounts 

package, we will shortly introduce 

online accounts for criminal and civil 

accounts. I am also pleased to report 

that we will shortly publish 

comprehensive accounts assessment 

guidance in the Legal Aid Handbook, 

so that legal aid practitioners and law 

accountants will have at their 

disposal, comprehensive and up-todate 

guidance on the preparation of 

legal assistance accounts. 

For practitioners who do have 

issues with abatements, the Board 

always welcomes engagement; and 

would be particularly open to 

addressing any apparent trend 

within a firm’s accounts. We 

regularly engage with local faculties, 

firms and law accountants to assist 

them with any assessment issues. I 

am happy to affirm that such an 

invitation remains open; where we 

have done this, the feedback has 

been positive. The Board is currently 

piloting a system of supplier 

support, where it proactively 

provides information to firms on 

their applications and accounts, 

seeking to work together, in our 

mutual interest, to maximise the 

likelihood of an application being 

successful or an account being paid 

first time. 

Andrew Menzies, Director of Corporate 

Services and Accounts, Scottish Legal Aid Board 


Legal aid: what achievement? 

As we move into the festive 

season, the phrase “turkeys 

voting for Christmas” came to 

mind when reading Oliver 

Adair’s comments on the 

Scottish Legal Aid Board’s annual 

report (Journal, October, 34). 

Mr Adair commented: 

“Solicitors played a vital role in 

achieving these savings [to the 

legal aid budget], while also 

providing legal services to the 

most needy in society.” Is the 

Society therefore to be 

congratulated for acceding, on 

our behalf but without our 

consent, to a 6% cut in the 

summary criminal legal aid 

budget? After 10 years without 

an increase in fees payable? 

At the Society’s Special 

General Meeting in August 2008 

the proposed cuts were 

unanimously condemned by the 

profession as “unacceptable”. 

The Summary Justice Reform 

review process, championed by 

the Society at that meeting, has 

failed to address the cuts in any 

way, let alone remedy their effect 

on criminal practitioners. That 

process has failed to achieve 

anything other than a dialogue 

with the Cabinet Secretary for 

Justice: something for which, it 

appears, we should be eternally 

grateful. My prediction, made at 

the SGM, that we would never 

see that money again has sadly 

proved to be the case. 

What Mr Adair may wish to 

focus on is the disproportionate 

rise in SLAB’s administration 

when compared to payments to 

solicitors. Over the last five years 

the number of legal aid 

applications has decreased by 

32% but administration costs 

have increased by 36%. Such 

costs are now over 9% of the 


overall legal aid budget, 

compared to 5.8% five years 

ago. Actual payments to 

solicitors have remained static 

over that period. Money must be 

taken out of administration and 

put back into payments to those 

appearing at court, to prevent 

this desperate situation 

deteriorating further. 

Nor can it be said that the 

PDSO has played a “vital role in 

achieving savings”. Its costs have 

risen by 11%, despite an 11% 

fall in its number of cases. 

More than just being 

“excellent value to the taxpayer” 

(as Mr Adair puts it), legal aid 

practitioners are seriously 

undervalued for the work they 

undertake. There is an increasing 

shortage of new solicitors. Access 

to justice is primarily a funding 

issue. Mr Adair should perhaps 

spend 2010 (which will be the 

18th anniversary of £42.20 per 

hour) trying to achieve higher 

payments for practitioners, rather 

than further savings. 

David O’Hagan, President, Glasgow 

Bar Association 

The review group replies 

David O’Hagan has chosen to 

make a personal attack on Oliver 

Adair, the convener of the Legal 

Aid Committee and review 

group. It compares poorly with 

Mr Adair’s measured comments 

on legal aid costs in the October 

Journal. The profession has come 

to a view, confirmed at the SGM, 

that it is in our best interests to 

engage constructively with the 

Scottish Government and SLAB, 

who control our funding and 

financial regulation. 

No rational alternative has 

been proposed or demonstrated. 

The “industrial action” only 

succeeded in giving credibility to 

the PDSO. The failed judicial 

review of the duty scheme and 

the requisitioning of the SGM 

proved equally ineffective. It is to 

be hoped this course of action 

will end with the latest inaccurate 

criticism by Mr O’Hagan. 

We need look no further than 

the original consultation 

document published by SLAB in 

October 2007, and the 

negotiated outcome for criminal 

legal assistance introduced in 

July 2008, to appreciate the 

value of engaging effectively 

with Government. The difference 

between the proposals and the 

eventual result was due largely 

to the experience and often 

unseen hard work of Oliver 

Adair. All of us who have worked 

with him admire his selfless 

dedication to a tough task. 

Oliver speaks for all of us in the 

review group. If colleagues have 

anything to say about the review 

process or continuing problems 

or queries, please contact us 

directly as many have, including 

some from Glasgow. Their 

contributions are welcome and 

inform and improve what we do. 

For the sake of completeness and 

fairness we should point out that 

David O’Hagan’s comments on 

the solemn regulations were 

incorporated into the 

representations made to the 

Government and SLAB. Now is 

the time for our GBA colleagues 

to join us in a more mature and 

constructive approach. Those of 

us engaged in promoting the 

profession’s interests would 

welcome their involvement 

and assistance. 

No one should confuse our 

engagement in this process with 

an endorsement of all aspects of 

summary justice reform, and 

especially not of cuts in legal aid 

spending. The Scottish Parliament 

decided to cut legal aid spending. 

Our job is to promote our crucial 

role in the system and try to 

achieve the best outcome for the 

profession and for our clients in 

the difficult economic 

circumstances we face. 

Lawyers – not only members 

of the GBA – are no less cynical 

today than they have ever been, 

and, to the credit of the Cabinet 

Secretary for Justice, the review 

process was established to 

consider actual business volumes 

and legal aid costs against 

projections. The question of 

recalibrating the fee structure is 

a key issue for this process. Legal 

aid administration costs continue 

to feature in these discussions. 

Mr O’Hagan appears to 

suggest that Mr Adair 

commended the role of the 

PDSO in “achieving savings”. The 

Society and Mr Adair agree that 

criminal legal defence is best and 

most cost effectively provided by 

solicitors in private practice. 

Oliver Adair and the Society’s 

review group will continue to 

press for a legal aid system 

which properly remunerates 

solicitors for representing and 

securing justice for their clients, 

often the most disadvantaged in 

our society. We welcome 

constructive involvement and 

input from all practitioners. 

Ken Dalling, John Scott, Ian Bryce and 

Vincent McGovern, members of the 

review group. 

kd@dallings.co.uk; 

johndscott@talk21.com; 

ianbryce.ccl@googlemail.com; 

vgmcgovern@msn.com 


Feature Home reports 

One year after their introduction, have solicitors been won over at all to 

the system of home reports? Comments collected by the Society and the 

Journal between them suggest that the scheme’s stated objectives are 

not being fully realised, as Peter Nicholson reports 

Reportcard 

“Home reports have certainly saved the 

surveying profession from penury. I think 

the jury is still out on whether they are 

good for the public.” (Janette Wilson, 

convener, Conveyancing Committee, 

the Law Society of Scotland) 

Ayear into home reports, 

while most solicitors agree 

that the state of the 

property market and the 

wider economy is the dominant 

concern, feelings about the reports are 

still running strongly. 

Some have been won over, 

believing they add a degree of 

transparency and help deals go 

through more quickly. Feedback 

however indicates a majority view that 

they act as a drag on the market by 

deterring people thinking of 

testing the level of interest in their 

house, are distrusted by many 

clients, and fall short of achieving 

their stated objectives. 

It is worth recalling at this point 

the principal justifications for 

bringing in the home report. First and 

foremost was the desire to see buyers 

receive meaningful information 

fyi 

An ESPC member survey 

found 80% experiencing 

some lender problems, 

the mode answer 

being “25% of 

the time” 

about the condition of the property 

for which they were offering; and it 

was a cornerstone of this exercise that 

the report should be independently 

prepared by the surveyor, though 

commissioned by the seller, and 

made available to all prospective 

purchasers. Further benefits 

anticipated were the avoidance of 

artificially low upset prices, and an 

end to multiple surveys on the same 

property by different offerers. So how 

does experience to date measure up? 

Lenders buying in? 

The first and perhaps most important 

point is that the answer depends very 

much on which solicitor you talk to. 

The differences in accounts of how 

the system operates are striking. 

Take, for example, one of the 

principal areas of complaint, the 

continuing reluctance of some lenders 

to accept the reports (RBS was named 

by more than one respondent). 

Mike Sinclair of Aberdein Considine 

in Aberdeen, and Ken Thomson of 

Thorntons in Dundee, both report 

only limited problems with lenders, 

though Thomson adds that this 

cannot yet be taken for granted. 

But in Perth, Graham Gibson of 

Kirklands claims he has “yet to come 

across a case where the lender was 

willing to accept the home report”. 

Often it is already out of date for 

lenders’ purposes (unusually, he cites a 

six week cutoff point compared with 

the general experience of 12 weeks’ 

currency); in any event, he adds, “my 

experience has been that when a 

purchaser has been successful they want 

to get a separate valuation for peace of 

mind/mortgage valuation purposes”. 

An ESPC survey of member firms 

found 80% experiencing some lender 

problems, the mode answer being 

“25% of the time”. 

Janette Wilson thinks lender issues 

are currently “the main problem”, with 

some regularly demanding either an 

updated or an independent valuation 

because of the age of the report, the 

surveyor not being on their panel, or a 

high loan-to-value ratio. 

Kennedy Foster of the Council of 

Mortgage Lenders in Scotland claims 

there has been no major change so far 

as lenders are concerned: they will 

generally accept a valuation provided 

12 / theJournal December 09 www.journalonline.co.uk

the surveyor is on their panel and it is 

not more than three months old. 

“There may be exceptions if a 

property or borrower is perceived to 

be higher risk and lenders always 

reserve the right to commission an 

independent valuation… These are 

decisions for individual lenders”. 

He adds however that throughout 

the development of the home report, 

the CML indicated that it could be an 

issue that when the report was 

commissioned, the identity of the 

purchaser and lender would not be 

known. So even if, as he points out, 

most of the major surveyors tend to 

be on lender panels, his comment of 

“no major change” has to be qualified 

in that important respect. 

Worth a second look 

It follows that many purchasers still 

end up funding at least a mortgage 

valuation, and not only for that reason. 

“Sellers are reluctant to pay for refreshed 

reports”, reports Graeme McCormick of 

Conveyancing Direct, Glasgow. “The 

cost normally falls on the purchaser, 

depending who blinks first.” Mark 

Hordern at GSPC reports some 

exceptions: “Some sellers will cover the 

cost of a refreshed report in order to 

secure a sale, and some buyers insist 

that they do so as part of an offer.” 

What about purchasers choosing to 

instruct their own survey in any 

event? This attracted the whole 

spectrum of responses. Despite 

Gibson’s experience, Thomson and 

Hordern say this is rare; and in 

Edinburgh, Chris Hardie of Lindsays 

says most purchasers accept the 

report. Even so, 78% of ESPC 

members say that a second survey is 

instructed “occasionally, i.e. 10-39% 

of the time”, and half of these are 

because the purchaser wants an 

independent survey. Paul Carnan in 

Glasgow reckons there is a further 

survey in a third of cases, while 

McCormick puts the figure at 50%, 

when lender requirements and 

purchaser lack of confidence in the 

seller’s report are taken together. 

Another development can only 

increase the chances that a purchaser 

will wish to have their own valuation. 

While there appear to be few cases of 

sellers going to the length of 

instructing more than one home 

report and selecting the most 

favourable, various solicitors report 

the emergence of the “beauty parade” 

– requesting a desktop valuation from 

say three firms of surveyors and then 

instructing the home report from the 

one providing the highest figure. Ron 

Hastings of Kelso indeed calls for the 


practice to be stamped out, by 

requiring disclosure of other 

valuations obtained within the 

previous three months. 

The suggestion may not be practical. 

Some, like McCormick, do not get 

involved in arranging home reports, 

and would have to rely on the client’s 

honest disclosure. But if the tactic is 

widespread, it could explain why 

McCormick has yet to see a valuation 

obtained by a purchaser exceed the 

home report valuation, whereas in 

several cases it has come in at less. And 

with an Edinburgh solicitor (otherwise 

in favour of the reports) reporting a 

potential difference of up to 25% 

between one valuation and another, 

and Janette Wilson having seen a case 

where a second surveyor produced a 

valuation £40,000 higher than a first, 

in a falling market, the seller appears 

to have little to lose. 

Paul Carnan believes it is not always 

borne in mind, as he says it should be, 

that the home report valuation is still 

only one person’s opinion. Referring to 

surveyors being selected for their 

favourable tendencies, or being 

persuaded to revise valuations upwards, 

he comments: “I see nothing wrong in 

this provided prospective purchasers are 

aware that the valuation in the home 

report is merely a valuation, provided 

by the seller’s choice of surveyor: it is 

not ‘the’ valuation. Other surveyors may 

have a different opinion.” 

All the same, it must represent a 

serious undermining of the original 

concept of an independently 

prepared report. Lindsays’ Hardie says 

his firm discourages clients from 

instructing more than one report, as 

“To do so on a regular basis would 

undermine the credibility of our 

selling service and the fact that the 

home report is entirely objective and 

therefore more reliable from the 

point of view of the purchaser and his 

lender.” One might think, however, 

that evidence that different surveyors 

can still come up with significantly 

different valuations of the same 

property will in itself work against 

such acceptance. 

Douglas Crombie of Craigens, 

Aberdeen does report the sort of 

experience the promoters must have 

been hoping for: “The immediate 

availability of information on the 

condition of a property, essential and 

non-essential repairs, and most 

importantly a valuation (which 

incidentally the majority of buyers and 

indeed lenders have accepted without 

question), coupled with a realistic 

asking price, has allowed buyers (1) to 

very quickly obtain mortgage lending 

approval, and (2) thereafter to offer 

with confidence at or around the 

asking price/valuation figure.” 

Market factors 

On the subject of price, GSPC’s 

Hordern does not detect any consistent 

trend, but observes that it is already 

clear that home reports are not 

preventing buyers from offering above 

valuation. Mike Sinclair in Aberdeen 

reports many properties now achieving 

more, some up to 10%. 

To be fair, it has never been claimed 

that the system would itself lead to 

fixed prices, and it is clear that local 

market conditions and/or demand 

for the particular property continue to 

have the dominant influence, even if 

the home report may provide a 

weighting of its own. 

Hordern continues: “On the other 

hand, we see properties… selling for 

less than the home report valuation. 

In some cases, sellers are effectively 

suggesting that their home represents 

great value by showing that their 

current asking price is lower than the 

home report valuation.” 

Upset prices reflect this benchmark 

role. Hordern adds: “Home reports 

have certainly encouraged most 

selling agents to advertise homes for 

sale at or close to their home report 

valuation. This is particularly true in 

areas where prices are under pressure 

and sellers are using the home report 

valuation to justify and support their 

asking price. However, there have 

been signs recently that some estate 

agents are returning to the policy of 

advertising homes for sale for less 

than the home report valuation.” 

Hardie agrees that home reports have 

at least eliminated the artificially low 

upset price – and can also put a damper 

on inflated expectations as to price. 

In Ken Thomson’s experience the 

valuation has been acting as a guide 

price: a fixed price at the valuation 

figure “is often treated almost as an 

invitation to offer below that price…. 

Continued overleaf > 

A fixed price at the valuation figure 

“is often treated almost as an 

invitation to offer below that price” 


Feature Home reports 

Continued from page 13 > 

In competitive situations, people may 

still pay a premium to secure a property”. 

Janette Wilson has recent 

experience of sales “where in a 

competitive situation with a closing 

date a price well in excess of the home 

report valuation has been achieved”; 

and to Graeme McCormick “It hasn’t 

made a blind bit of difference. Where 

there are closing dates or competition, 

prices achieved are often 5% to 10% 

over valuation. If there is no 

competition it just depends on 

negotiation as it always has.” 

Relevant also to impact on the 

market is the complaint by several 

solicitors that home reports have a 

depressing effect because, as was 

predicted, clients don’t want to go to 

the expense of obtaining a report 

just to test the market. The delay in 

being able to market a property also 

causes frustrations – two to four 

weeks for some. 

A cost to absorb 

Nearly everyone agrees that home 

reports mean more work (the ESPC 

finding is 89%, though Hardie is one 

exception). The sheer length of some 

reports is astonishing. An Edinburgh 

solicitor records one of 41 pages – 

counterproductive, as the clients 

didn’t want to wade through it all. 

Carnan has seen one of over 70. 

“Clients are increasingly turning to 

their solicitor for interpretation and 

advice”, he adds. “Standing the time 

involved to read and digest the 

content of such reports and then to 

give advice thereon, I do charge.” 

In that he is in the minority, as most 

respondents say the current highly 

competitive market means they are 

unable to pass on the cost of the work. 

For Graeme McCormick the extra 

is in renegotiating the price when 

purchasers’ valuations come in at 

under the home report figure. “We just 

absorb the cost and the vituperation.” 

Janette Wilson claims that a web-based 

system such as the Society’s service 

provided by Openhouse should 

reduce the extra work: “you don’t have 

to assemble all the bits yourself”. 

Gibson, however, says that by 

referring the client direct to the 

surveyor, “the client gets a quicker 

service and we do not get involved in 

doing (unbillable) work”. 

Scope for improvement? 

What about the main point, then, of 

providing better information? This, it 

appears, is bound up with the level of 

trust in what is offered. In Carnan’s 

The system in practice 

John Scott of the Society’s Professional 

Practice Department reports: 

“Your feedback so far indicates that 

some favour the new system, finding 

home reports an effective marketing 

tool for sellers and a source of useful 

information for prospective purchasers. 

However many remain highly sceptical 

of the benefits. Several aspects are 

causing particular concern: 

Discouragement of potential sellers 

from entering the market, due to the 

cost of obtaining the report. 

Delays in initial marketing of 

properties, caused by the requirement 

to obtain the report first. 

words, “the home report is not 

meeting this need effectively because 

of the disconnect between the time of 

valuation and the time of offer, and 

because it is perceived as being the 

seller’s report and, consequently, not 

to be trusted”. 

The thrust of other responses is that 

if clients are being given more 

information, whether they appreciate 

it depends on their willingness to 

accept the home report at face value; 

and while this applies in many cases, 

in a considerable though difficult to 

determine percentage it does not. 

The question then is whether the 

level of acceptance will rise or fall due 

to the external influences at work. 

What happens next? The Scottish 

Government’s promised review will 

take place in three stages. First, a 

scoping exercise is underway to identify 

relevant data streams, including 

quantitative data from Solicitors 

Property Centres and Registers of 

Scotland. The Society has pressed for a 

focus group of solicitor estate agents as 

a useful source of qualitative data. 

An interim review will then assess 

any refinements required to improve 

the way the reports work – a fine 

tuning exercise to be based on the 

first year’s data, and due to complete 

by next summer (some delay is 

predicted). The Society failed in a bid 

to include consideration of removing 

the compulsion element, or 

abandonment of the whole scheme; 

this would only destabilise the 

market, said the Government. 

The full evaluation of whether 

home reports have achieved the 

Government’s policy objectives will 

not take place until five years have 

elapsed. “It remains to be seen how 

the impact of home reports on the 

condition of housing will be 

measured”, says John Scott, secretary 

Circumvention of the Act, e.g. where 

selling agents postpone the 

commissioning of a report until a 

purchaser is lined up. 

“Beauty parades”, where a selection 

of desktop valuations is obtained and 

the single survey is then ordered from 

the surveyor providing the highest. 

Delays in concluding missives, 

while purchasers’ lenders approve the 

single survey. 

Rejection of the single survey by 

lenders, particularly when provided by 

a firm of surveyors not on their panel, 

and insistence on a separate mortgage 

valuation at the purchaser’s expense – 

multiple surveys?!. 

“I raised all these points at both the 

stakeholders’ meeting and the meeting 

with DTZ [who are carrying out the 

initial stage of the Government review]. 

It is clear that the Government is 

sensitive to at least some of them. It has 

been encouraging Trading Standards to 

take a more proactive approach to 

enforcement of the legislation, and has 

contacted CML on the lender issues. 

“We shall continue to represent 

your views on home reports to the 

Government at every available 

opportunity. In addition we may carry out 

our own research to gauge their effect.” 

to the Society’s Conveyancing 

Committee, who has been heavily 

involved in the monitoring work. 

To Graeme McCormick it is “one of 

the biggest flaws in the scheme” that no 

national register of home reports has 

been created: this could have provided a 

historic condition report on a property, 

and valuable information on the 

quality of the housing stock. Indeed, as 

things stand, one wonders how any 

change in the level of information 

available to purchasers, particularly as 

to whether defects have been revealed 

that otherwise would only have come 

to light after purchase, is to be assessed. 

Scott adds: “The political reality is 

that home reports will be with us for 

the foreseeable future, well beyond 

the Holyrood elections in 2011, 

unless there is a groundswell of 

public opinion against them. If you 

have any clients who are seriously 

unhappy about the new system I 

suggest that you ask them to direct 

their complaint to their local MSP!” 

What can be said with some 

confidence, on the feedback reported 

here, is that theory and practice in 

relation to home reports are currently 

some distance apart, and it remains to 

be seen whether effective measures 

can be devised to narrow the gap. 


Registers of Scotland’s biggest ever showcase event 

will officially launch both ARTL and the upgraded 

Registers Direct service this month 

On 15 December, Cabinet 

Secretary for Finance and 

Sustainable Growth, John Swinney 

will officially launch ARTL, 

Registers of Scotland’s (RoS) online 

system for the automated 

registration of title to land, and our 

upgraded information service, 

Registers Direct (RD). The launch, 

the biggest showcase event that 

RoS has ever hosted, is being held 

in Edinburgh’s Dynamic Earth, a 

setting befitting the significance of 

ARTL and RD to the Scottish 

economy. 

Commenting on the event, 

Kenny Crawford, RoS’s Head of 

Business Development and 

Customer Services, said: “It will 

focus particularly on ARTL and 

RD. We will be using real 

examples, filmed case studies 

and independent research to 

demonstrate our products. It is 

also an opportunity to inform 

you of our future plans and 

innovations.” 

RD is, of course, not new. It was 

first launched back in 2000 when 

its customer base was dominated 

by private search companies and 

the legal profession. Since then, 

many public and private bodies 

have signed up as customers, 

recognising the economic benefits 

of the information we hold and 

the ready access to that 

information that RD can deliver 

for them. In a recent analysis of 

RoS’s economic value to the 

Scottish economy, BiGGAR 

Economics estimated that using 

RD helped local authorities 

collect more than £90 million 

extra council tax. Without the 

electronic delivery of the 

information held on our public 

registers, such savings would not 

be possible. 

We have recently completed 

the introduction of the new 

upgraded RD to our customers. 

The main change is a new 

architecture that provides a more 

robust platform delivering 

greater certainty of service 

availability. We will continue to 

work closely with our customers 

to ensure that the product meets 

their changing needs. 

In contrast to RD, ARTL is a 

relatively new innovation, first 

introduced in 2007. Since then 

we have successfully registered 

over 21,000 paperless 

transactions on the Land 

Register. Initially limited to the 

online registration of standard 

securities and discharges, last 

year we introduced functionality 

to enable the online registration 

of dispositions and the 

collection of any associated 

stamp duty land tax as well as a 

range of local authority grants 

and charges. In financial terms, 

we estimate that the value of 

standard securities registered 

using ARTL already totals more 

than £1.1 billion. 

We were deliberately cautious 

in rolling out ARTL to customers, 

as we wanted to make sure that 

the system positively supported 

the business process that takes 

place in the conveyancer’s office 

before engaging in a major 

publicity campaign aimed at 

both the public and the 

profession. Since the rollout 

began, we have made a number 

of functional and technical 

enhancements to the system 

based on the feedback that we 

receive from users. Customers 

tell us that ARTL now adds real 

value to the conveyancing and 

registration process. 

There are now over 270 solicitor 

firms who have the capability to 

use ARTL and they are supported 

by 17 lending institutions who 

have made their standard 

securities available for use. 

In these challenging economic 

times, ARTL provides us all with 

opportunities for administrative 

and financial efficiencies, and 

our website (ros.gov.uk) details 

these. It also includes 

testimonials from practitioners. 

However, ARTL was introduced – 

ultimately – for the benefit of 

your client, be that the person 

buying a house or the lender 

who is advancing loan funds. 

Registration fees for ARTL are 

significantly less than for 

traditional, paper-based 

applications and the registration 

process for ARTL transactions is, 

in the main, completed on the 

day the application is processed. 

Looking forward to the official 

launch John King, RoS’s 

Registration Director, said: “If 

you use ARTL your client will 

enjoy financial savings, a faster 

service and greater security. A 

major part of our future publicity 

will be aimed at informing the 

conveyancing public about 

ARTL. I would urge all 

conveyancing firms to commit to 

using the system so that your 

clients can take advantage of the 

financial and other savings that 

ARTL can offer.” 

Professor Stewart Brymer, the 

convener of the Law Society’s 

ARTL Implementation Group 

comments: “The new upgraded 

Registers Direct is a welcome 

addition for conveyancers and the 

wider public. The real benefits will 

ARTL UPDATE 

As at 20 November 2009 

Registers 

Down the slipway 

Above: Cabinet Secretary for Finance 

and Sustainable Growth, John Swinney 

MSP will attend the official launch of 

ARTL and RD 

be gained from ARTL however. In 

ARTL, Scotland has one of the 

leading automated registration 

systems in the world. RoS are to be 

congratulated on their vision to 

invest in ARTL and it is hoped that 

a fully electronic conveyancing 

process will be in place sooner 

rather than later once e-missives 

become a reality.” 

To find out more about ARTL and 

RD, please contact our eServices team 

by tel: 0845 607 0160 or email: 

eservices@ros.gov.uk or go to ros.gov.uk . 

21,522 ARTL transactions have taken place. 

Live on ARTL 

277 solicitors’ firms. 

17 lenders. 

11 local authorities. 

29 full sign-up meetings scheduled over the next four weeks. 

For up-to-date information and a full list of participating practices and 

companies go to: ros.gov.uk/artl 


Feature Repossessions 

The situation of home owners faced with 

repossession proceedings has become a political 

issue. Mark Higgins assesses the likely impact for 

creditors and debtors of the Government’s 

response, the Home Owner and Debtor 

Protection (Scotland) Bill 

Homing 

instinct 

You don’t have to be too 

old to remember the 

introduction of the 

Mortgage Rights (Scotland) 

Act 2001, heralded by many – 

including myself – as a landscapechanging 

piece of legislation, 

overturning the almost invincible 

position of the creditor in 

repossession actions. The 2001 Act 

did have some effect in altering the 

balance of power between lenders 

and their customers but, while no 

precise figures are available, it 

transpired that no more than 10% of 

repossession actions between 2002 

and 2009 were the subject of a 

mortgage rights application. 

In many cases, home owners were 

either unaware of the opportunity to 

make such an application or ignored 

their opportunity. In other cases, the 

formality and complexity of the 

process may have deterred 

applications under the 2001 Act. 

The effectiveness of the Act was not 

a matter of political concern during 

the relatively benign economic 

conditions pertaining in the early and 

middle years of this decade. The 

current economic crisis, however, 

radically changed the political 

climate, and fuel was added to the fire 

by the introduction in England & 

Wales of the pre-action protocol for 

mortgage possession actions, which 

led to accusations that the Scottish 

Government was not affording the 

same protections to Scottish 

consumers as those enjoyed by their 

counterparts in England & Wales. 

Anyone at home? 

The Scottish Government gave the 

matter careful consideration and has 

now introduced the Home Owner 

and Debtor Protection (Scotland) 

Bill, likely to become an Act during 

the summer of 2010. The policy 

objectives of the bill are “to protect 

home owners and debtors during a 

period of recession”, but there is 

also a recognition that the measures 

will “continue to be appropriate in 

fyi 

The bill will permit 

representation in 

repossession 

proceedings by 

approved lay 

representatives 

the event of an early recovery”. 

Part 1 of the bill (part 2 deals with 

sequestration and trust deeds) 

changes the landscape in relation to 

repossession procedures by separating 

out procedures for the enforcement of 

securities over, on the one hand, 

subjects “used to any extent for 

residential purposes” and, on the 

other, wholly commercial subjects. 

Mortgages and other securities in 

the first category will be subject to a 

whole raft of new legislation to be 

developed over the next six months. 

The enforcement of commercial 

securities will remain largely 

unchanged, and none of the changes 

set out below apply to bargains where 

there is no usage on a residential 

basis. The very first question creditors 

need to ask themselves in future is 

therefore “what are the security 

subjects being used for?”; but canny 

borrowers might consider moving 

into their warehouses or factories for 

a few nights to avail themselves of the 

new protections. 


Pressure on the courts 

Of the new concepts introduced for 

mortgage repossessions, the most 

important is surely the provision that 

all such cases will now require to call 

in court, whether or not the customer 

appears or is represented. The bill 

provides that residential claims in this 

area in future must be by way of 

summary application. Practitioners 

will have seen a great deal of 

discretion about substantive decision 

making under the 2001 Act, which 

the new bill preserves, but summary 

applications create the possibility of 

more discretion being exercised about 

procedure too. 

The Scottish Government has 

been very clear about stating 

that it understands the 

need for adequate 

resourcing of the courts 

to deal with all the additional 

hearings that will occur. It seems 

likely that at least 10,000 new court 

hearings per annum will be required, 

and perhaps more depending on the 

attitude of the courts to granting 

multiple continuations. It may well 

be that in more rural courts, the 

business will be able to be 

accommodated within existing court 

rolls, but in more urban settings, it is 

to be hoped that sufficient resource 

will be provided to ensure that justice 

does not suffer from excessive delays. 

Hoops for creditors 

When the court does consider 

the creditor’s application for a 

repossession decree, it must in all 

cases consider whether the creditor 

has followed the new concept of 

statutory pre-action requirements, 

introduced by the bill. If it has not, 

the creditor will not be entitled to 

enforce the security. These 

requirements are to be fleshed out by 

secondary legislation but will include 

enforceable obligations such as that 

the customer should have been the 

subject of attempts to discuss the 

arrears, and that the creditor must not 

commence proceedings if the 

customer is likely to receive sufficient 

support from government, or under a 

mortgage protection policy, to make 

the proceedings inappropriate. 

If the debtor appears or is 

represented, the court must consider 

the various matters currently relevant 

to a mortgage rights application, such 

as the nature and extent of the arrears 

and the extent to which the creditor 

has sought to assist their customer. 

The use of summary application 

procedure means that the possible 

options open to the court are virtually 


infinite, but multiple continuations 

and sists seem highly likely. 

This is also a good place to note 

that yet another change the bill will 

achieve is the permission of 

representation in repossession 

proceedings by approved lay 

representatives, likely to include 

those working for the citizens advice 

bureaux, Shelter and similar 

organisations. 

A further change is to introduce a 

class of potential parties to the action 

called “entitled residents”. These 

individuals, despite not having been 

called as defenders, may apply to the 

court to continue the proceedings or 

make any other order the court 

thinks fit, effectively seeking the same 

relief from the court as the mortgage 

customer is able to do if they choose. 

The definition of “entitled resident” 

is identical to the category of persons 

who are currently able to make an 

application under the 2001 Act and, 

as such, includes spouses, civil 

partners and certain specified others. 

The Scottish Government is currently 

consulting on whether – for the first 

time – this category of persons 

should be extended to include 

tenants, and early indications suggest 

that such a change may appear at 

stage 2 of the bill. 

Improved protections? 

Where a decree is granted, the 

bill seeks to permit a much more 

straightforward procedure to allow 

the debtor or an entitled resident to 

recall that decree. The 2001 Act 

caused a number of difficulties about 

reponing, and the new bill will 

probably result in an automatic recall 

procedure. As matters stand, only one 

recall application can be made and 

there is a time limit on applications 

of 14 days after a charge. It has been 

noted that this is actually more 

restrictive than the current law on 

reponing, which allows recall 

(though not of right) up until the 

point when the decree has been 

implemented. It is likely this will be 

changed before the bill becomes law. 

Finally, as matters stand there is 

intended reform of voluntary 

surrender procedure, covering the 

situation where the customer wishes 

to hand back the property. The bill 

seeks to reinstate the pre-2001 

position by allowing the period of 

notice in a calling-up notice to be 

reduced to nil, but makes the 

procedure to achieve that result very 

cumbersome, requiring that the 

customer and any entitled resident 

certify by affidavit that they do not 

occupy the subjects; that they are not 

aware of anyone else occupying the 

subjects; that they consent to the 

exercise by the creditor of its rights 

under the security; and that their 

consent is freely given and without 

coercion of any kind. The reaction 

from both the lending industry and 

law centres has been to question why 

the existing process needs changed at 

all, as it works well. If the current 

provisions remain, it is likely that 

most creditors will simply raise court 

proceedings rather than invoke this 

revised procedure. 

In terms of practical effects, 

inevitably for creditors it will take 

them longer to obtain a decree as a 

hearing will be required in every case. 

Costs are also likely to rise, partly for 

the same reason and partly because of 

the need to prepare for the hearing in 

relation to pre-action requirements 

and so on. 

The benefits, however, will be 

greater similarity with the processes 

in England & Wales, and reduced 

homelessness, which after all is the 

main point of the bill. 

Same direction 

Even when the new Act comes into 

force, this is likely to remain an area 

of legal flux. Lord Gill has recently 

recommended that all repossession 

actions be classed as housing cases 

and assigned to the district court. We 

await developments on that, but in 

the meantime, the Government is to 

be commended for the fact that the 

bill accords in many ways with the 

conclusions reached, quite separately, 

by Lord Gill’s review committee. 

Mark Higgins is a member of Irwin 

Mitchell LLP 

The court must in all cases 

consider whether the creditor 

has followed the new concept 

of statutory pre-action 

requirements 


Feature Alcohol 

The Alcohol etc (Scotland) Bill, now published, confirms the Scottish 

Government’s intention to stand by the legality of a compulsory 

minimum pricing mechanism. James McLean explains the European 

law issues on which a challenge would turn 

Bottle 

for a contest 


The Scottish Government’s 

proposals for alcohol 

pricing have attracted much 

comment, particularly 

following Advocate General Kokott’s 

recent opinion concerning the 

pricing of tobacco products 

(Joined cases 197/08, 198/08 

and 221/08 (Commission v 

(respectively) France, Austria, and 

Ireland). 

The two main proposals in this 

respect concern: 

banning promotions where the 

price per item of multiple alcohol 

items (of the same or different kinds 

and whether or not packaged along 

with non-alcohol items) is less than 

the price of the alcohol item sold 

singly; and 

minimum retail pricing, by 

imposing a minimum price per “unit” 

as a mandatory condition of premises 

licences and occasional licences. 

Both sets of proposals raise issues 

under European Union law. The first 

set also raises a devolution issue under 

the Scotland Act 1998, 

separate from the issue 

of competence that automatically 

arises alongside any EU issue. 

Devolved or reserved? 

The areas reserved to the Westminster 

Parliament under the Scotland Act 

include consumer law and competition 

law (sched 5, heads C3 and C7). The 

imposition by law of a minimum price 

does affect competition, but it aims to 

alter the conduct of end purchasers, not 

of vendors. It addresses price viewed as 

purchase price available to end 

purchaser, not as sale price set by 

vendor. It is not a competition law 

measure; nor does it relate to the 

protection of consumers from vendors. 

The original proposals in 

“Changing Scotland’s Relationship 

with Alcohol: a Framework for 

Action”, included a ban on loss 

leading (selling below cost), which 

would clearly have been a 

competition law measure. The 

published bill does not attempt to 

tackle loss leading. Nonetheless, a law 

which restricts specific types of 

promotion to consumers is a law 

aimed at the conduct of vendors. As 

EU-compatible? 

The crucial articles of the 

current EU Treaty are: 

“Article 34 

Quantitative restrictions on 

imports and all measures 

having equivalent effect shall 

be prohibited between 

Member States.” 

“Article 36 

The provisions of Articles 34 

and 35 shall not preclude 

prohibitions or restrictions on 

imports, exports or goods in 

transit justified on grounds of 

public morality, public policy 

or public security; the 

protection of health and life 

of humans, animals or 

plants; the protection of 

national treasures possessing 

such, it would appear to have more to 

do with consumer protection and 

competition than with health, and to 

be likely to be regarded as within the 

areas reserved to Westminster. 

So far as EU law is concerned, it is 

necessary to ignore any devolution 

issues. They are entirely an internal 

United Kingdom matter. 

Fag packet approach? 

The main focus of media comment 

has been on the compatibility or 

otherwise of the Scottish 

Government’s proposals with the 

obligations of the United Kingdom 

under the Alcohol Duty Directive 

(92/83/EEC), and under what are 

now (since the entry into force of the 

Treaty of Lisbon) articles 34 and 36 of 

the Treaty on the Functioning of the 

European Union (formerly articles 28 

and 30 of the Treaty Establishing the 

European Community, and originally 

articles 30 and 36 of the Treaty of 

Rome). The text appears in the panel. 

The Scottish Government contends 

that both of its sets of proposals are 

compatible with EU law. Others 

contend the contrary. 

Minimum prices and bans on loss 

leading have featured in many cases 

before the Court of Justice, including 

Case 82/77 van Tiggele, Case 287/89 

Commission v Belgium, Joined cases C- 

267/91 and C-268/91 Keck and 

Mithouard, Joined cases C-401/92 and 

C-402/92 Tankstation ‘t Heukske vof 

and J B E Boermans, and Case 216/98 

Commission v Greece, in addition to 

the tobacco cases mentioned above. 

In the tobacco cases, Advocate 

General Kokott observed: “The 

artistic, historic or 

archaeological value; or the 

protection of industrial and 

commercial property. Such 

prohibitions or restrictions 

shall not, however, constitute 

a means of arbitrary 

discrimination or a disguised 

restriction on trade between 

Member States.” 


decisive question is whether the 

measures at issue are necessary to 

achieve [the protection of public 

health] or whether there are 

equally suitable, but less restrictive, 

alternatives”; and “it must be 

recognised that the member state 

can determine the level at which it 

would like to protect public health 

and how that level is to be achieved. 

In that respect member states enjoy 

considerable discretion”. She 

nonetheless concluded that the court 

should decide that: 

“by maintaining in force a system 

of minimum prices for cigarettes... 

and a prohibition on selling tobacco 

products at a promotional price 

which is contrary to public health 

objectives, the French Republic has 

failed to fulfil its obligations under 

[the Tobacco Duties Directive]”; 

“by enacting and retaining legal 

provisions under which minimum 

selling prices for cigarettes and for 

fine-cut tobacco for the rolling of 

cigarettes are set by the state, the 

Republic of Austria has failed to fulfil 

its obligations under [the Tobacco 

Duties Directive]”; and 

“by imposing minimum retail 

prices for cigarettes, Ireland has failed 

to fulfil its obligations under [the 

Tobacco Duties Directive]”. 

The opinion is about the Tobacco 

Duty Directive 95/59/EC. The structure 

for duty on tobacco is significantly 

different from that for alcoholic 

beverages under the Alcohol Duty 

Directive 92/83/EEC. Tobacco duty is a 

function of the maximum retail price 

of tobacco, a maximum which the 

directive requires the manufacturers to 

be free to set. Alcohol duty is based on 

volume of alcohol, not price. 

Interference with pricing of alcohol 

may not be as destabilising for the 

duty regime as in the case of tobacco. 

It should not be assumed that 

observations about the effect of 

harmonisation of the structure of 

tobacco duty are entirely transferable 

to the harmonisation of the structure 

of alcohol duty. It is, however, true that 

in relation to alcohol, as to tobacco, 

the legal issues concern not only free 

movement but also compatibility with 

the duty directives. 

Case law issues 

The earlier case law seemed to suggest 

that, as a matter of free movement, a 

ban on loss leading was not a measure 

falling under article 34 and so did not 

need to be justified under article 36. 

The AG’s opinion can be read as 

compatible with that view and as 

condemning the bans only because of 


fyi 

So far as EU law 

is concerned, it is 

necessary to ignore 

any devolution issues 

as entirely an internal 

UK matter 

their alleged interference with the 

structure of tobacco duty. Whether the 

court will agree that harmonisation of 

duty structures necessarily renders an 

article 36 defence irrelevant remains 

to be seen. The free movement cases 

have not been as tolerant of 

minimum pricing as of restrictions on 

promotion, but we should be wary of 

treating past applications of a 

principle as though they amounted to 

a self-standing rule of law. 

The issues that emerge from the 

relevant case law on free movement 

are most easily expressed as a set of 

layered questions, each applied to 

each of the proposals: 

is it a “measure having equivalent 

effect” to a “quantitative restriction 

on imports”; 

if so, is it capable of being “justified 

on grounds of public... policy or public 

security; the protection of health and 

life of humans”, while not constituting 

“a means of arbitrary discrimination or 

a disguised restriction on trade between 

Member States”; 

if so, does it operate as a restriction 

only to an extent that is proportionate 

to the legitimate objective pursued 

(put differently, is it really impossible 

to achieve the objective in a way that 

causes less disruption or disadvantage 

to trade in imported products)? 

Basically, one would expect an EU 

law challenge to amount essentially to 

a “Yes” to the first question, followed 

by “No” and “No, anyway”. Conversely 

the expected defence for promotion 

restrictions might amount to 

responding “No” to the first question, 

on the grounds that they are “national 

provisions restricting or prohibiting 

certain selling arrangements” that 

“apply to all relevant traders operating 

within the national territory and... 

affect in the same manner, in law and 

in fact, the marketing of domestic 

products and of those from other 

member states”. For minimum pricing 

the defence response might be 

“Maybe” or “Yes”, followed by “Yes” 

and “Yes” to the other questions. 

Battle lines 

The challenge to minimum pricing 

would be likely to be argued along 

the following lines: 

that minimum pricing reduces the 

price advantage of non-premium 

products over premium products; 

that this is a “measure having 

equivalent effect” to a “quantitative 

restriction on imports”; 

that the effect of deterring 

consumption by increasing the cost of 

alcoholic drink could be achieved 

with less or no impediment to 

imports simply by increasing duty 

across the board (the European 

Commission’s view); 

that even if minimum pricing were 

acceptable, it should be fixed by 

reference to volume rather than the 

British “unit”; 

that the reservation to Westminster 

of the fixing of duty rates is an internal 

UK matter and consequently not 

pleadable at EU level as a justification 

for not having taken that course; and 

that the minimum pricing 

therefore fails the “proportionality” 

test and is consequently not saved by 

article 36. 

The rejoinder might need to be to 

the following effect: 

admitted that the proposed 

minimum pricing legislation may well 

be a measure having equivalent effect; 

the health and public order issue is 

not simply “people drink too much 

alcohol”, but “there is credible 

evidence that certain identified 

health and public order problems are 

attributable (to a significant extent) to 

certain identified patterns of 

purchase of alcohol”; 

the proposed minimum pricing 

legislation is a fine-tuned measure 

that precisely targets those patterns 

and there is credible evidence that it 

will disrupt them and thereby 

diminish the incidence of the 

identified health and public order 

problems; it treats equally all types of 

alcoholic drink, beers, wines, spirits 

and “tonic wines”; 

the “unit” (expected to be defined 

in the pricing order as 10 millilitres of 

ethyl alcohol) is a simple volume 

measure with an objective scientific 

basis, being (in that case) the amount 

that the human body can break down 

in one hour; 

in all the circumstances the 

proposed minimum pricing 

legislation is, if anything, a less 

disproportionate response to the 

identified problem than would be an 

across-the-board increase in duty. 

This would be a novel health and 

economic analysis to present to the 

Court of Justice and would take it 

into uncharted waters. 

The assembling of evidence of 

harm attributable to misuse of 

alcohol is not the end but only the 

beginning of the task that lies ahead 

for the Scottish Government. The bill 

takes the form of an enabling Act. 

This will gives interested parties 

adequate opportunity, if they wish, to 

take legal action to try to prevent the 

making of the enabled orders. 

James McLean, Burness LLP 


Feature VAT 

Debra Dougal points out how the pending increase in VAT will affect transactions 

that straddle the New Year, in particular the provision of legal services 

Ready for 

the VAT rise? 


It is just a year since the 

Government rushed 

through, in a matter of 

days, a reduction in the 

VAT rate to 15%. We were told 

that this would stimulate the 

economy. Whether it did or not 

is one for the political 

commentators; but the 13 month 

temporary reduction is now 

almost at an end and we must 

prepare ourselves for a return to 

17.5% VAT on 1 January 2010. 

The advantage this time is that 

we have had time to prepare and 

to look for the opportunities this 

increase may present. The 

disadvantage, apart from the 

obvious extra 2.5% we will all 

now pay, is that an increase 

presents rather more pitfalls for 

business than a reduction. 

HMRC tell us they will take a 

“light touch” to errors resulting 

from the increase. We shall see… 

What are the practicalities? 

The first and most important 

thing to remember is the tax 

point rules, and that a tax point 

is the date on which VAT is 

calculated. 

There are two tax points, the 

basic tax point and the actual 

tax point. 

The basic tax point is created 

when goods are delivered or 

change hands and when a service 

is performed. However, the basic 

tax point is overridden by an 

actual tax point, which happens 

when money is received prior to 

the basic tax point or when an 

invoice is issued up to 14 days 

after the basic tax point. In 

simple terms, money comes first, 

then the supply of goods or 

services, and finally the invoice. 

There is a concession at the time 

of a rate increase which allows the 

basic tax point to be used as the 

relevant date if the issue of an 

invoice would result in the higher 

rate of VAT being charged. 

Putting this into a practical 

example, if I order a new car on 

20 December but don’t take 

delivery until New Year, when I 

receive an invoice on the date of 


delivery, I will pay VAT at 17.5%. 

If, however, I receive an invoice 

before 31 December or pay 

before that date, the VAT payable 

will only be 15%. 

If (unlikely I know) I take 

delivery of my car on 31 December 

but don’t receive an invoice or pay 

any money until New Year, the car 

dealer has the option to charge 

17.5% based on the invoice date, 

or 15% because I took delivery of 

the car and so received the goods 

when the VAT rate was 15%. 

This presents some 

opportunities for cashflow 

boosting; but before we get to 

that, back to a few practicalities. 

Some businesses have pointed 

out that a change of rate at a 

minute past midnight on the 

busiest night of the year is a 

nonsense, and so the 

Government has agreed a 

concession for those retailers 

operating point of sale retail 

schemes who are open at 

midnight on 31 December. For 

them the VAT rate remains at 

15% until the end of their 31 

December trading session or at 

6am on 1 January 2010, 

whichever comes first. 

The group facing some of the 

trickiest of problems are those 

businesses who make 

continuous supplies of services, 

and so issue applications for 

payment rather than invoices. 

This broadly encompasses 

landlords, the construction 

industry and professional 

practices – lawyers and 

accountants largely. For us, the 

problem is that we have no basic 

tax point and our application for 

payment does not create any tax 

point, so that, if we issue an 

application at 15% but don’t get 

paid until 2010 when our invoice 

is generated by receipt of 

payment, we have to account for 

VAT at 17.5% and not the 15% 

we requested from our client. 

Where the timespan of the 

service to which the invoice 

relates is clear, such as a rent 

invoice, we are allowed to 

apportion the VAT between the 

Although this may amount to 

relatively little, with interest 

rates being so low an invitation 

to pay in advance is tempting 

element of time at 15% and the 

remainder at 17.5%, but for 

most true continuous services, 

this is difficult and time 

consuming to establish and, 

moreover, to prove. 

Where’s the good news? 

Simply, it’s all about cashflow and 

using this as an opportunity to 

give it a boost. Any private 

individual or business that cannot 

claim back all of the VAT it pays 

out will want to avoid the extra 

2.5% cost, and although this may 

amount to relatively little, with 

interest rates being so low an 

invitation to pay in advance is 

more tempting. 

There is anti-forestalling 

legislation to prevent serious 

misuse of this opportunity, but 

this only kicks in under specific 

circumstances and if the 

customer is unable to reclaim all 

of the VAT charged. Where this is 

the case, it’s still only an issue if 

there is advance invoicing or 

payment exceeding £100,000, 

credit terms of more than six 

months, connected parties, or 

co-financing of the purchase. 

Even then, a defence of normal 

commercial practice could still 

allow the transaction at 15%. 

Where the anti-forestalling 

legislation is breached, the 15% 

VAT rate still applies to the pre-31 

December tax point but an 

additional 2.5% becomes 

immediately payable on 1 

January. Although I envisage the 

imposition of this being limited, 

the new penalty regime could 

make this an expensive move and 

I warn caution to anybody who 

thinks they might be caught by 

the anti-forestalling rules. 

Finally, let’s look on the 

bright side again and consider 

that we may be only six months 

or so away from another VAT 

rate increase. Never mind the 

extra cost that 20% VAT would 

bring: after three rate changes 

in about 18 months we will all 

be experts. 

Debra Dougal is a VAT partner at 

Haslers, chartered accountants, Essex, 

and a member of UK200Group Tax 

Panel. e: debra.dougal@haslers.com 


Professional news Society 

New website to promote 

training openings 

The Society is introducing a recruitment portal for traineeships 

and student summer placements, at no cost to advertisers 

As the Society continues to 

strengthen its focus on supporting 

and representing the profession, the 

introduction of a recruitment portal 

advertising traineeships and summer 

placements is an exciting 

development for law students and 

the profession alike. 

Unlike most recruitment websites, 

training organisations can post their 

vacancies for free and without agency 

involvement, allowing direct links to be 

built between the training organisations 

and future trainees from an early stage. 

Placements and traineeships come in 

all shapes and sizes and we have 

developed this website to ensure all 

training organisations have an equal 

platform to tell students about the 

various opportunities. Training 

organisations advertise in different ways 

and at different times, and this site 

allows each organisation to 

complement their existing recruitment 

methods at no cost. 

During the LLB and Diploma, most 

students have very little contact with 

the profession, and their only 

awareness may come from their 

university law fair. With an average of 

25-30 training organisations 


attending, law fairs rarely represent 

the broad spectrum of traineeships 

and summer placements available. 

This website seeks to place all 

training organisations on an equal 

footing to attract high calibre 

individuals suited to their needs. 

It also seeks to replace the Society’s 

traditional “training register”, putting 

the onus on graduates to search for 

available traineeships, and become 

more proactive in finding an 

opportunity. Persistence and 

perseverance are qualities that will 

serve all graduates well at any time 

and stage of their career, but never 

more so than during this difficult 

economic climate. It is no secret that 

the competition for training contracts 

and summer placements is 

particularly keen at the moment, and 

I have been impressed by the 

prospective trainees now emerging 

from the LLB and Diploma who are 

ensuring they are as employable and 

competitive candidates as possible. 

Interest in opting to receive 

communications for the Society (New 

Lawyers’ News), attending CPD for 

new lawyers seminars, and gaining 

valuable work experience, has soared 

fyi 

Elsewhere: 

Crown 

disclosure to 

defence lawyers 

– see p45 

Training 

organisations 

retain an 

appetite for 

high calibre 

graduates, 

despite the 

economic 

uncertainty, 

and it’s not 

difficult to 

see why 

this year, and as a result the 

profession can benefit from 

employing engaged, committed 

graduates who have made a conscious 

decision to pursue a legal career. 

Training organisations retain an 

appetite for high calibre graduates, 

despite the economic uncertainty, and 

it’s not difficult to see why. Today’s 

trainees may become senior members 

of the organisation in the future. Both 

the organisation and the trainee can 

benefit from a genuine investment in 

the trainee’s future. 

I intentionally use the word 

“investment”, as recruiting a trainee 

can provide all training organisations 

with an opportunity to “grow your 

own assistant”. This phrase was 

coined to convey the long term goal 

of an organisation recruiting a 

summer student or trainee with a 

view to them becoming an 

established member of the 

organisation in the future and, 

ultimately, take on the succession. 

They can only do this if there are 

bright and capable assistants ready to 

step up to the challenge. For this 

reason, the importance of recruiting 

the right employees cannot be 

overestimated. Recruiting the right 

people now can pay dividends in the 

future, and by developing this website 

the Society is recognising the 

importance of ensuring training 

organisations have a fair opportunity 

to offer placements and traineeships 

to law students, and ultimately invest 

in the future of their organisation. 

The flexibility this new website 

affords means that training 

organisations can offer a variety of 

opportunities, depending what is 

appropriate for them, whether one 

short summer placement or 20 

traineeships. With no charge to 

advertise your vacancies, this may just 

be an investment worth making. 

To find out more about advertising your 

placement or traineeship vacancies free on 

lawscotjobs.co.uk, email 

newlawyers@lawscot.org.uk . 

Heather McPhee, Development 

Officer, Education & Training 


Diploma validity 

extended 

Students looking for traineeships 

are reminded that the Diploma 

in Legal Practice is valid for a 

period of two years from 1 

January after the Diploma is 

awarded. For example a Diploma 

awarded in August 2007 is valid 

until 31 December 2009. 

However, it is possible to apply 

to the Society for the validity of 

the Diploma to be extended. 

Applications are being treated 

sympathetically in the current 

economic climate. The Society 

will take into account relevant 

work experience and courses 

undertaken, as well as the 

applicant’s efforts to secure a 

traineeship. Applications should 

be made to the Society 

approximately two months 

before the Diploma expires. 

For more information about how to 

apply or to discuss any aspect of your 

traineeship, please contact Katie Meanley, 

Manager, Registrar’s Department on 

0131 476 8105/8200 or email her at 

katiemeanley@lawscot.org.uk . 


It has been an interesting year for 

solicitor advocates. The Rights of 

Audience Review is well underway 

and now the Society’s Council has 

approved 15 solicitor advocates as 

senior for legal aid purposes. This 

may help to address some of the 

concerns expressed in the 

Woodside case. 

The Council’s approval is the 

end result of a lengthy process of 

discussion and consultation, and 

helps to remedy what some have 

seen as an anomalous situation. 

To quote from the material 

issued to all potential 

applicants, taken in turn from 

the consultation: “The Law 

Society of Scotland is keen to 

stress that this scheme is not an 

alternative QC structure. The 

scheme aims to ensure that 

there is some independent 

element available to check that 

payments from public funds are 

being made appropriately. 

“Accreditation will be given to 

those solicitor advocates who are 

the most able and experienced 

and have demonstrated the 

ability to deal with the most 

serious cases.” 

The list of 15 names is the 

work of the assessment panel 

established under the 

Russell guests at ceremony 

Sir Muir Russell, former Permanent Secretary to the Scottish Executive and Principal of 

Glasgow University, and now chairman of the Judicial Appointments Board for Scotland, was 

guest speaker at the Society’s recent Admission Ceremony in the Signet Library, where he is 

pictured (right) with Chief Executive Lorna Jack and President Ian Smart. 

Relocation project review 

The audit report on the delayed project to relocate from Drumsheugh Gardens to new premises 

was considered by Council members at the November meeting. The Society proposed the 

report should be prepared in an amendment to a proposal which was then passed at the 

Society’s SGM in September. Council noted the review and agreed it should be available in full 

on the Society’s website: see www.lawscot.org.uk/about/finance/annualreports . 

First solicitor advocates 

approved as “senior” 

chairmanship of Sheriff Principal 

Bowen. The panel consisted on 

this occasion of Alayne Swanson, 

President of the Society of 

Solicitor Advocates, Ian Bryce, 

solicitor advocate and member 

of the Society’s Council, Criona 

Courtney, lay member, and Alex 

Prentice QC, assistant principal 

advocate depute. 

Applicants all had at least seven 

years’ experience as solicitor 

advocates, although in many cases 

this figure was easily exceeded. 

The application form asked for 

details of cases undertaken in the 

last two years, along with other 

relevant information. 

It was intended that the list 

should reflect the reality of those 

who are currently undertaking 

cases of gravity and difficulty, 

such as might also be dealt with 

by QCs. As a result colleagues 

will probably recognise most or 

all of the names on the list. 

In passing it is worth noting 

that the new accreditation scheme 

attracted many more applications 

PPC 

members 

The Professional 

Practice Committee is 

pleased to announce 

that following the 

resignation of three 

solicitor members over 

the course of the last 

year, it has brought its 

membership back up 

to a full complement 

with the appointment 

of three new 

members: Norman 

Banski (Council 

member), Derek Allan 

and Valerie O’Neil. 

than the single application for silk 

received this year. The drop in 

applications to be a QC, from 

solicitor advocates in particular, 

was the subject of comment from 

Sir William Rae, the independent 

observer of the QC application 

process. No doubt this will be the 

subject of further discussion. 

Accreditation is for a period of 

five years only and is subject to 

review thereafter. This is meant 

as a means of ensuring that high 

standards are maintained. 

As part of this exercise, solicitor 

advocates with four years’ 

experience will automatically be 

entitled to claim remuneration as 

“junior as leader”. 

The next step is for changes to 

be made to the legal aid 

regulations. We understand that 

this should happen early next 

year. From that point on, only 

those on the list will be entitled 

to charge senior rates. 

John Scott, Vice President (Crime), 

Society of Solicitor Advocates 

Obituaries 

FRANCIS ANTHONY PATTERSON 

(retired solicitor), Clarkston 

On 9 May 2009, Francis Anthony 

Patterson, formerly partner and latterly 

consultant to the firm Peterkins, Aberdeen. 

AGE: 80 

ADMITTED: 1954 

ROBERT IRVINE GLOYER 

(retired solicitor), Burghead, Moray 

On 25 October 2009 Robert Irvine 

Gloyer, formerly partner of the firm 

Leonards, Hamilton. 

AGE: 73 


JOHN HENDERSON SINCLAIR 

(retired solicitor), Crail 

On 8 November 2009, John Henderson 

Sinclair, formerly sole practitioner, Glasgow 

and latterly consultant to the firms Golds 

and Davidson Fraser, both Glasgow. 

AGE: 74 


More news> 

Property law news items are 

on pp56-57 



The request for solicitors to take 

part in a survey of views of the 

Society attracted almost 1,900 

completed online questionnaires, 

resulting in the most 

comprehensive study of its kind 

undertaken by the Society. 

“That amounts to an excellent 

response rate of 19%,” says 

Aileen Baxter, from the 

independent market research 

agency, Progressive, who carried 

out the research. “Compare that 

with standard business research, 

which might get a response rate 

of 5-10%. There was also a good 

mix of responses in terms of the 

profile of individuals and the 

sectors they represented. All in 

all, the feedback suggests a 

healthy level of engagement 

among solicitors in Scotland.” 

Although the research was 

designed to be as user-friendly 

as possible, it included a 

comprehensive set of detailed 

questions that covered many 

aspects of the Society’s work. A 

free text section allowed solicitors 

to add personal comment. A 

number of themes emerged from 

the analysis of the responses. 

“Overall, those who 

responded were broadly satisfied 

with the work of the Society but 

there were a number of areas 

where members think 

improvements could be made,” 

Baxter adds. “On the whole, 

professional representation 

appears to be meeting members’ 

needs, with strong support for 

political representation. But 

members expect more targeted 

support from the Society in 

future.” 

Other headline findings include: 

All the services provided by 

the Society are considered 

important. 

Further work is needed to 

move members from “satisfied” 

to “very satisfied”. 

Gaps exist in awareness levels of 

some of the services, particularly 

CPD and traineeships. 

Services will only be accessed 

when relevant to particular 

members and so, while valued, 

overall usage can be low in 

some areas. 

The top areas on which 

members feel the Society should 

concentrate in the future are 

legal aid, regulation, and 

improving perception of the 

profession with the public. 


The Society’s recent online membership survey generated 

much positive feedback, as Craig Watson reports 

Your feedback 

Staff dealing with enquiries 

are polite and helpful 

(18% no experience) 

Staff dealing with 

enquiries are informative 


Enquiries dealt with promptly 


Information from Society 

available in a variety of 

formats (11% no experience) 

Society provides good quality 

business support, training/CPD 


Strongly disagree 

3% 

3% 

3% 

5% 

Figure 1: the Society’s customer service. There are no issues with any aspects of general customer service although the 

proportions of no opinion (neither good nor bad) suggest some further work may be needed to fully understand opinions 

Legal Aid 

Regulation (ie Scottish Legal 

Complaints Commission) 

Improving perception of 

profession with the public 

Promoting the profession in the media 

Educational policy for future generations 

Support for trainees and 

newly qualified solicitors 

Equal opportunities for female lawyers 

Promoting Scotland as 

Alternative Resolution Centre 

Promoting the profession to 

those interested in law career 

Low Medium High 

Figure 2: areas where the Society should concentrate representation. The top areas members feel the Society should provide 

relate to “regulation”, “improving perceptions with the public” and “legal aid” with the more promotional aspects receiving the 

lowest level of interest 

Awareness issue 

In summary, says Aileen Baxter, 

there is work for the Society to 

do in raising awareness of the 

services it provides and 

understanding the opinions of 

members – conclusions 

acknowledged by the Society’s 

Chief Executive, Lorna Jack. 

“The Society has carried out 

some important research in 

recent years,” she says. “For 

instance, on CPD and among 

Journal readers as well as in the 

form of individual studies, such 

as Women in the Legal Profession 

9% 

14% 64% 19% 

22% 

24% 

22% 

35% 

Disagree Neither agree nor disagree Agree Strongly agree 

in Scotland and Profiling the 

Profession. But it is a decade or so 

since we asked for members’ 

views on the Society itself. 

“Given that the profession is 

going through a period of 

unprecedented change and 

challenge, it was really important 

to gather their views. Ultimately, 

the purpose is to make sure we 

meet our commitment to provide 

relevant and effective services by 

making improvements where 

necessary. To do that, we need 

feedback from our members and 

I would like to thank all those 

59% 15% 

9% 34% 57% 

58% 12% 

63% 10% 

10% 34% 56% 

10% 34% 56% 

16% 38% 46% 

12% 44% 44% 

10% 48% 42% 

48% 5% 

30% 41% 29% 

35% 42% 23% 

35% 45% 20% 

who took the time to give us their 

views. The fantastic response from 

the profession perhaps suggests 

that such an exercise was long 

overdue. 

Society marketing manager 

Angus Maclauchlan continues: 

“The results are largely in line 

with what we expected. We are 

conscious that there are many 

different voices within the 

profession. We have to reconcile 

the needs of those diverse groups 

and that presents a considerable 

challenge. But the research will 

make that significantly easier as 


Figure 3: ways in which the Society represents solicitors. Highest levels of interest lie with representation at Holyrood, although 

political representation in all areas is considered by most members something the Society should concentrate on 

Figure 4: information provision in the future. Law Society website and journal wanted and used the most, followed by find a 

solicitor, monthly e-bulletin, handbook and jobs, with the cost of time and Brussels agenda only considered if relevant to the 

individual solicitor 

Figure 5: satisfaction with confidential professional practice helpline. No issues with any of the services used 

we now know where to focus 

and have a better idea of who is 

looking for which service.” 

Like Aileen Baxter, he recognises 

the overall satisfaction level while 


BRUSSELS WESTMINSTER HOLYROOD 

61% 51% 49% 

25% 

30% 

11% 

15% 15% 

3% 4% 4% 

Views of Views of 

profession profession 

on on major 

legislation bills 

98% 93% 94% 93% 

Law 

Society 

website 

Ethics advice 

Money laundering 

Business structure 

Information on rules 

Guidance notes on 

practice issues 

The 

Journal 

32% 

Informing 

on legal 

issues 

76% 66% 64% 85% 75% 72% 

18% 

5% 

25% 

8% 

27% 

8% 

12% 

4% 35% 58% 

4% 11% 

2% 3% 

15% 

8% 

8% 

86% 

‘Find a 

solicitor’ 

function 

3% 

Views of 

profession 

on 

legislation 

64% 

9% 

72% 

Views of 

profession 

on major 

bills 

58% 

Monthly 

e-bulletin 

43% 

51% 

56% 

67% 

Informing 

on legal 

issues 

35% 

41% 

Scottish 

solicitors 

handbook 

62% 

Views of 

profession 

on 

legislation 

30% 

Law 

scotjobs. 

co.uk 

identifying that lack of awareness 

of services is an area which needs 

looking at. But he also highlights 

a number of individual issues. The 

positive findings include: 

20% 

4% 

Views of 

profession 

on major 

bills 

44% 

17% 

Cost of 

Time 

40% 

38% 

36% 

35% 

31% 

22% 

5% 

Informing 

on legal 

issues 

9% 

Brussels 

Agenda 

Unsure Very poor Quite poor Neither good nor poor Quite good Very good 

High 

Medium 

Low 

Not 

relevant 

Society 

should keep 

Plan to use 

in the future 

1% 

None 

% good 

93% 

83% 

73% 

87% 

90% 

In terms of basic customer 

service, a total of 83% agreed or 

strongly agreed that staff dealing 

with enquiries were polite and 

helpful. 

Very high levels of awareness 

and usage of the main 

information provision services – 

for instance, 99% awareness of 

both the Journal and website as 

well as 72% for the relatively 

new monthly e-bulletin. 

Satisfaction levels with sources of 

information were also high. 

Very high satisfaction levels 

with continuous professional 

development, career 

development and the 

professional practice helpline. 

Encouraging levels of 

awareness and satisfaction with 

the relatively new membership 

services, which aim to generate 

income and therefore lead to less 

reliance on the PC fee. 

Developments 

Commenting on the research, 

Neil Stevenson, Director of 

Professional Support at the 

Society, says: “It is reassuring that 

members think we are getting a 

lot of the basics right, although we 

need to look at how we can better 

represent individual solicitors 

rather than the profession as a 

whole. Likewise, while there is a 

general endorsement of our 

communication tools, other 

publications are less well known. 

We also see users are satisfied with 

career development but there are 

mixed levels of awareness about 

the services that exist, as there are 

in relation to services for those 

taking on trainees. Other areas we 

will be developing include 

providing an online legal library, 

black letter law updates and more 

online CPD. We are also already 

examining the viability of a more 

flexible PC fee structure.” 

The results of the research will 

now be analysed in more detail. 

At the same time, the Society’s 

teams have been asked to identify 

where they believe improvements 

could be made. The research will 

be followed up with qualitative 

research to build on the 

quantitative survey. Angus 

Maclauchlan concludes: “In the 

past, we have relied to an extent 

on anecdotal evidence – this 

research, along with that still to 

be carried out, will give us a 

sound body of evidence on which 

to make decisions for the future. 

One powerful message that came 

through was that solicitors want 

us to provide a broad range of 

services from which they can 

select the ones they require.” 



The very definition o 

The Society is now consulting further on the shape of the Registered Paralegal 

scheme to be introduced next year. Collette Paterson explains why 

One clue is in the title, as what it means 

to be a paralegal has never truly been 

defined in Scotland. The pace of 

change over the last few years demands 

that we now identify and create a 

structure for an estimated 10,000 

people working in this capacity in the 

Scottish legal profession. 

Between May and July last year, in 

partnership with the Scottish 

Paralegal Association (SPA), the 

Society held a preliminary 

consultation on the creation of a 

regulated status for paralegals in 

Scotland, and the concept of the 

“registered paralegal”. 

The consultation, which attracted 

over 400 responses, closed during the 

What the scheme involves 

How will someone become a 

registered paralegal? 

Transitional arrangements have 

been developed which ensure 

fair access for those who 

already meet the standard, in 

recognition of those with 

qualifications and those 

without certain qualifications, 

but with relevant experience. 

Otherwise, all entrants will: 

provide evidence of their 

“relevant qualification”, and 

details of a supervising solicitor; 

enter as a “trainee registered 

paralegal” and work towards 

agreed standards during a one 

year training period; 

qualify as a registered 

paralegal with the agreement of 

the supervising solicitor after a 

year’s training period; 

continue working under a 

supervising solicitor and adhere 

to a code of conduct, CPD 

regime, and be subject to 

sanctions for non-compliance, or 

in the event of a complaint 

naming them which is upheld. 


economic decline and, while no 

launch date was confirmed, analysis of 

the responses and crucial 

development on a potential 

framework for the scheme 

continued through 2009. By 

bringing the project under the 

management of the 

Education and 

Training Policy 

Department, which 

was on the cusp of 

delivering an 

unprecedented 

change 

programme 

regarding a new 

route to qualification 

Which areas of practice 

are covered? 

The Society has developed a set of 

base competencies which apply 

regardless of practice area. In 

addition, each applicant to the 

scheme and their supervising 

solicitor will complete a 

questionnaire which draws out the 

specific skills, knowledge, attitudes 

and values which apply to their 

practice area. To assist applicants 

with their understanding of this 

process, questionnaires have been 

completed for six “guide areas” – 

conveyancing, civil litigation, wills 

and executries, criminal litigation, 

debt recovery, and liquor licensing. 

What are the benefits 

to paralegals? 

A robust set of entry criteria will 

apply to the scheme. Through 

that, and a code of conduct and 

CPD regime, a professional 

status and defined career path 

for paralegals will emerge. It is 

envisaged that higher grades of 

registered paralegal, and fasttrack 

routes into the scheme, will 

be developed in a later phase. 

The Education and Training 

Policy team also proposes to 

incorporate the role of registered 

paralegal in future reviews of 

routes into the profession of 

solicitor, and fast-tracking which 

may be possible for registered 

paralegals, particularly where 

demand for traineeships may 

continue to exceed supply. There 

will also be associated benefits 

of membership. 

What are the benefits to 

supervising solicitors? 

Whilst solicitors will retain overall 

responsibility for the work 

undertaken, they will be able to 

rely on the competence of a 

registered paralegal not only 

before they offer employment, 

but also in the course of 

individual transactions. 

Standards of competence and a 

code of conduct will be clearly 

articulated, as will the sanctions 

which can be imposed on a 

registered paralegal who falls 

short of the standard, or has a 

and CPD regime from September 

2011, there emerged a fresh 

opportunity to develop a final set of 

policy proposals for registered 

paralegals in line with overarching 

policy thinking on standards for 

trainee solicitors and CPD. 

So why consult again? We are 

operating in a markedly different 

market to that of summer 2008, 

and we know that recovery 

may take some years. In the 

interim, redundant 

paralegals may have 

embarked on further study 

to improve their 

employability in 

anticipation of market 

complaint upheld against them 

through the scheme. 

Is this the best option for 

paralegals and solicitors? 

Paralegal associations, the SPA 

and Society of Specialist 

Paralegals to name two, do often 

impose standards on their 

members in Scotland. The Society 

believes that regulation is the next 

step, and that integrating 

paralegal regulation and 

representation within its existing 

functions, is the most efficient 

and cost effective way forward. 

Who covers the cost 

of the scheme? 

Other than the initial outlays 

made to bring the scheme to 

fruition, the scheme is intended to 

be self-funding, and not funded 

through the practising certificate 

fee. It will be for those benefiting 

from it – registered paralegals, 

supervising solicitors and 

businesses employing both – to 

decide on payment of an annual 

£100 fee per registered paralegal. 


f paralegal 

recovery. Certainly, organisations 

delivering legal services have required 

to re-evaluate their business models 

and their positioning within the 

Scottish legal services market generally, 

to ensure their sustainability. 

A commitment from the Society to 

launch the registered paralegal 

scheme, in what remain challenging 

times, is therefore meaningful. The 

consultation on the policy paper 

outlining the framework of the 

scheme, which reflects the market we 

are now in whilst holding to the 

principle that regulation of paralegals 

Comment from the SPA 

The Scottish Paralegal Association 

was formed in 1993 in response to 

the growth of the paralegal 

profession in Scotland. In the early 

days it was a challenge simply to 

obtain recognition of an additional 

tier which was neither legal 

secretary nor solicitor. 

Traditionally paralegals rose from 

the ranks of skilled legal secretaries. 

Today we also see paralegals 

entering the profession direct from 

college and university or 

transferring from other industries. 

As a result, paralegals in Scotland 

today work in a range of legal 

arenas from the traditional high 

street practice to in-house 

commercial concerns, government 

and financial institutions. You will 

find paralegals selling and 

purchasing your dream home, 

drafting wills or dealing with the 

estate of a loved one, settling 

disputes with your neighbour, or 

processing your remortgage. 

The SPA believes not only that 

paralegals should be promoted and 

gain the recognition they deserve, 

but that standards are an absolute 

necessity to our integrity and respect 

as an emerging profession. Standards 

to us mean firmly established 

membership criteria, a code of 

conduct, a grading structure, inoffice 

experience and the 

requirement to maintain CPD. Given 

the increasing use of paralegals in 

both the public and private sectors 


is essential, runs from 30 November 

2009 to 28 January 2010. It can be 

accessed at www.lawscot.org.uk/ 

paralegals, or contact 

registeredparalegals@lawscot.org.uk 

for further information. 

The proposed launch in spring/ 

summer 2010 will be a definitive step 

for the Scottish solicitor and paralegal 

professions. Please take the time to 

share your views. 

Collette Paterson is Deputy Director 

(Education and Training Policy) at the 

Law Society of Scotland 

we believe that it is in the best 

interests of paralegals, clients and 

employers as a whole that the person 

undertaking the provision of legal 

services ought to meet certain criteria 

and be regulated to ensure that the 

criteria are met. 

The Legal Services Bill has made 

proposals which will change the 

face of legal services in this 

country. It is not unrealistic to 

expect, in some areas at least, the 

emergence of services where there 

is one supervising solicitor to many 

paralegals. It is therefore all the 

more important that the person 

who is dealing with a transaction 

is regulated as competent, able 

and fit to do so. 

Delays as a result of the 

economic downturn have been 

unavoidable, but we are delighted 

to see our work with the Society, in 

developing the “Law Society of 

Scotland Registered Paralegal” 

scheme, proceeding with the final 

consultation. This is an opportunity 

to add your voice and views to the 

proposed scheme. It is important 

that we receive as many responses 

as possible from all interested 

parties to ensure that this scheme is 

fit for purpose and delivers what 

you expect. 

Karen Leslie and Alison Butters are 

practising paralegals and Joint 

Presidents of the Scottish Paralegal 

Association 

Guidance and 

rules from SLCC 

The Scottish Legal 

Complaints Commission 

(SLCC) has issued its first 

guidance to the 

professional bodies to 

ensure legal firms tell their 

clients about the SLCC at 

the earliest opportunity, 

and has also announced a 

change to its rules. 

The guidance states: 

“Practitioners should 

ensure that clients, or 

others, who may wish to 

express dissatisfaction 

with a practitioner or firm, 

should be advised of the 

SLCC as the appropriate 

gateway for complaints at 

an appropriate time.” 

SLCC Chair, Jane Irvine 

commented: “This may be 

when they issue a letter of 

engagement, or as a 

complaint arises, or at the 

point an internal complaint 

system concludes without 

resolution, but it is for the 

practitioners to determine 

the appropriate time. 

“We recognise the SLCC 

is a second tier complaint 

system and practitioners 

must have the opportunity 

to resolve complaints in 

the first instance – and we 

hope they continue to do 

this. We will, however, 

monitor how well 

practitioners are adhering 

to the guidance.” 

The SLCC wants to 

ensure that solicitors’ 

firms and advocates 

inform their clients where 

to take their complaint if it 

cannot be resolved. It has 

asked the Society, the 

Faculty of Advocates and 

the Association of 

Commercial Attorneys to 

issue the guidance to their 

members so that every 

practitioner member has 

one point of reference for 

all professional guidance. 

SLCC rules have also 

been updated to reflect its 

experience of complaint 

handling over the last year. 

Whereas under the old rules 

it was mandatory that a 

complaint be dealt with by 

a practitioner before the 

SLCC would investigate it, 

the Commission will now, in 

exceptional circumstances, 

accept some complaints 

directly without the need for 

the practitioner to have first 

looked at them, for example 

where a serious allegation 

of misconduct is made. 

Ms Irvine said: 

“We feel this is a very 

important change for 

both consumers and 

practitioners as it 

recognises that there may 

be exceptional situations 

where further dialogue 

between them is not 

desirable.” 

First reported on 

www.journalonline.co.uk 

At the end of December or early in January the 

SLCC will publish its draft budget, levy and case fee 

structure for the year from 1 July 2010. The Society 

will be invited to comment in January/February. 

The Commission is keen to hear, not only from 

the professional bodies, but also individual 

members, and the Society also encourages 

members to express their views. 

Any members with observations or comments on 

the level of the levy, the categories and/or the 

individual case fees are asked to copy them to 

reg@lawscot.org.uk, so they can inform the 

Society’s own response. 



Law reform update 

Criminal Justice 

and Licensing Bill 

The Criminal Justice and 

Licensing Bill, currently at stage 

1, is wide ranging. The Society’s 

Criminal Law Committee has 

contributed to a number of 

consultations in relation to the 

bill, and in November it 

submitted written evidence. This 

commented on provisions 

relating to sentencing, 

community payback orders, 

serious organised crime, extreme 

pornography, prosecution of 

children, and evidence issues. 

The Mental Health and 

Disability Law Subcommittee 

has also contributed its views 

on the bill’s test for diminished 

responsibility, suggesting that 

a stronger volitional element 

be included. 

Notifications 

Entrance certificates 

Issued during October/November 2009 

ADAMS, John Paul 

ATLAS, Maria Lvovna 

BALLANTYNE, Ailidh Catherine 

BARR, Robert John 

BELL, Hilary Mary 

BIRSE, Mary McLaughlin 

BORROWMAN, Suzanne 

BROWNLEE, Thomas Richard 

BURGESS, Lindsey Margaret 

CHRISTIE, Morag Mary 

CLARK, Nicola Jane 

CORRIGAN, Sinead 

COWAN, Jennifer Scott 

CUMMING, Kenneth George 

CURRIE, Lucy Margaret 

DAVIS, Jennifer Rae 

DILASSER, Hollie 

DONNELLY, Stephen Philip 

DUNCAN, Sarah Jane 

ELDER, Lynsey 

FLEMING, Andrew James 

Graham 

FLEMING, David Alan 

FORMAN, Kimberley Leigh 

FORRESTER, Graeme Bruce 

FOTHERINGHAM, Alison 

Margaret 

FYFE, Helen Elizabeth 


Arbitration Bill 

The Arbitration (Scotland) Bill 

was passed on 18 November 

2009. The Society’s working 

party was very closely involved at 

all stages of the Scottish 

Government’s proposals and the 

subsequent development of the 

bill in the Parliament. Its expert 

arbitration lawyers included Neil 

Kelly, a partner at MacRoberts, 

who lent his considerable 

knowledge to scrutinise the bill 

and suggest a number of 

improvements. 

As a result of the bill’s 

passage, arbitrators will now 

have clear powers to grant 

remedies, make awards of 

interest and deal efficiently with 

questions of law. Parties will also 

have greater choice over how 

they choose to arbitrate and will 

GILL, Trudy Ann 

GORDON, Natalie Elizabeth 

GOTTS, Nicola Jane 

GRAY, Joanne Lauren 

GRAY, Richard William James 

GRAY, Ross 

HARDMAN, Jonathan Charles 

HARKESS, Gillian 

HEANEY, Zara Amber 

HENDERSON, Susan Janette 

HEPBURN, Thomas Clark 

HUNTER, Sarah Lynne 

JONES, Andrew Daniel 

KELLY, Nicola 

KER, Alan Duncan 

KING, Laura Amie 

KING, Louise Flockhart 

KNOX, Elizabeth 

Margaret Helen 

KOLETSOU, Lia 

LAKE, Jenna 

LAMB, Laura Anne 

LEONARD, Elouisa Margaret 

LYONS, Andrew David 

McCARRON, Eamonn John 

McCORQUODALE, Laura Anne 

McDADE, Lynne 

McGINLAY, Ross Maxwell 

McKECHNIE, Alison 

MACKENZIE, Jennifer 

McKERRELL, Katharine 

Elizabeth Seymour 

McKIBBEN, Louise Anne 

McMURCHIE, Lynn Lillian 

MAGUIRE, Michael James 

MARTYN, David Andrew 

MATHER, Katrina Elaine 

MATHESON, Alistair Martin 

MILLER, Collette Tracey 

MOIR, Jack 

MONTEITH, Jenna Alison 

MORRIS, Adelle 

MORRISON, John 

MOYES, Peter Stewart William 

MULHOLLAND, Tracey Louise 

MURDOCH, Edward Munroe 

NELLANY, Kirsty Jane 

NEWTON, James Kenneth 

NOBLE, Sophie Lucinda 

NORRIS, Louise Dorothy 

NORVAL, Robbie Stuart 

O’KANE, Siobhan Elizabeth 

PATERSON, Anthony 

John Paul 

PATERSON, Jennifer Gail 

PETRE, Oana-Iuliana 

have recourse to the courts in 

appropriate circumstances. 

Legal Services (Scotland) Bill 

The Society has submitted 

written evidence on the Legal 

Services (Scotland) Bill, which 

will allow solicitors the option of 

adopting an alternative business 

model to the traditional law 

firm. It welcomes the proposals 

while stressing that there must 

be sufficient protection for key 

principles. The Society has 

also been invited to give oral 

evidence on the bill on 

15 December. 

Home Owner and 

Debtor Protection 

The Society has submitted 

written and oral evidence on 

the Home Owner and Debtor 

Applications for admission 

October/November 2009 

ANDERSON, Victoria 

BAIRD, Iain 

BELL, Kerry 

BHATTI, Khurrum 

BROWN, Iain 

CLARK, Andrew 

CLARK, Dawn 

CONWAY, Aimee 

DOWNIE, Laura-Anne 

EDWARDS, Catherine 

EVERDEN, James 

HARDIE, Julie 

HORNE, Emma 

HOWARTH, Laura 

KERR, David 

QUINN, Jennifer 

READ, Kristin Elizabeth 

RYBITSKAYA, Evgeniya 

Leonidovna 

SINCLAIR, Corrine Mary 

SLATER, Calum William 

SLOAN, Edward Charles Paul 

SMITH, Barry Colin 

SMITH, Sarah Benedicte 

SUNDERLAND, Hannah 

TAIT, Andrea Laureen 

Protection (Scotland) Bill, 

currently at stage 1. It contains 

measures to protect debtors 

and increase protections for 

those facing bankruptcy. The 

committee has expressed 

concerns about some of the 

provisions and at the lack of 

consultation on many of the 

provisions. 

Tax law update 

The Charity Law Subcommittee 

had a meeting with OSCR’s 

Chief Executive Jane Ryder, and 

senior legal adviser, Quentin 

Fisher on 16 November. The 

main purpose of the meeting 

was to scope opportunities for 

increased engagement between 

OSCR and the profession and to 

establish how the Society can 

assist with this. 

McGLASHAN, Joanne 

McLENNAN, Raymond 

McQUEEN, Claire 

MANCHESTER, Gail 

MORRISON, John 

NELLANY, Rhona 

POULLAIN-KAY, Julian 

SEMBAY, Nicola 

SHARMA, Vaibhav 

THOMSON, Elizabeth 

THOMSON, Sarah 

VAN DER MERWE, Danielle 

WALLACE, Jennifer 

WILLMOTT, Simon 

YETTON, Peter 

THOMAS, Nicholas 

THOMPSON, Richard John 

THOMSON-McDERMOTT, 

Kate Helen 

TROTMAN, Rachel Davie Lee 

TIERNEY, Louise 

URQUHART, Jill Catherine 

WALKER, Sarah Kate 

WATSON, Victoria 

WELCH, Kirsty Anne 

WISHART, Alan Michael 


2009/2010 

Welcome 

to the Society’s Directory 

of Service Providers 

The Society’s Service Provider Scheme was set up in 2008 

to offer members a range of services and products that 

provide important and relevant support to legal businesses. 

Adding value to the high level of service already provided 

to clients is important for firms to help them stand out from 

the crowd and differentiate them from their competitors. 

The Society’s Service Provider Scheme is a source of 

reference to the many legal services and products solicitors 

increasingly depend on to operate effectively in today’s 

challenging marketplace. In many cases preferential rates 

have been negotiated by the Society and we hope you will 

be able to take advantage of these. Our recent Member 

Survey indicates that increasing numbers of members are 

using the services of companies in the Scheme. More 

details and links can be found on the Service Provider 

pages on the Society’s website at www.lawscot.org.uk 

Henry Robson, 

Deputy Chief Executive

Braemar Finance 

Develop your practice 

in 2010 with Braemar Finance 

We are a principal lender specialising 

in the professions. 

Cash is king and it makes sense to 

smooth your annual budget with 

instalment finance.We provide 

simple, tax-efficient finance solutions 

for many purposes. 

■ Partner’s equity 

■ Computer hardware & software 

upgrades 

■ Interim funding on phased projects 

Company Net 

Company Net is one of Scotland’s 

leading software business 

consultancies – delivering business 

focused solutions to clients for 

over 13 years. 

■ KnowledgePoint: 

Knowledge Management 

for Scots Law 

KnowledgePoint enables legal 

professionals to more efficiently 

search, store and share knowledge, 

within a branded company intranet. 

■ Office development 

■ Office equipment 

■ Cars 

■ Tax* 

For a personal service contact us on 

01563 852100 or visit 

www.braemarfinance.co.uk 

* Arrange a tax loan facility now to cover 

your January tax bill 

KnowledgePoint provides a single 

point of access to all the information 

you need, from internal documents to 

online subscription services. Finding 

information is quicker; centralising 

and managing styles is more 

efficient; sharing company 

knowledge is simpler. 

To find out more about KnowledgePoint 

for your business, contact James Freel on 

James.Freel@Company-Net.com or visit 

us on www.company-net.com 

BUSINESS SERVICES AND OFFERS 

Cigna 

Healthcare 

CIGNA’s medical and dental plans can 

help you deliver effective and valued 

health benefits to your employees. 

Medical insurance can help 

employees avoid the delays 

experienced when accessing NHS 

treatment, giving them a choice in 

where and when they’re treated. 

Whether it’s about attracting and 

retaining key employees with a 

comprehensive plan, or preventing 

absences in a cost effective way with 

a budget plan – our modular design 

offers an option for all. 

Hertz Car Hire 

Would you like to spend less money 

on car rentals and more money on 

your holiday? 

As a member of the Law Society 

of Scotland, Hertz welcomes you to 

the member benefit programme, 

which means great savings and 

offers every time you book a car 

with Hertz. 

Here are some of the benefits that 

you can enjoy: 

■ 5% off our best available retail 

rates when you book.This includes 

discount off our great value 

prepaid rates as well 

Dental insurance can ease the 

worry of finding a dentist and offers 

the peace of mind that routine and 

unforeseen dental procedures are 

covered. 

If you’re buying health benefits for 

the first time or want to review 

existing arrangements, we’d be 

delighted to help. 

For more information contact us on 

01475 788753 or email us at 

sme.ss@cigna.com. Visit 

www.cigna.co.uk 

■ Exclusive savings on worldwide car 

hire 

■ Special money-off vouchers, 

upgrade coupons and other 

promotional offers from time to 

time during the year 

■ Save time and money with Hertz 

#1 Club membership 

Remember every time you reserve to 

quote booking reference: CDP 545637. 

What’s more, booking couldn’t be 

simpler – either online on the Society’s 

Service Provider web pages OR via the 

Hertz Member Benefit Programme 

hotline: 0870 844 4844

2009/2010 

Kirklands 

Stress-free Compliance 

with the Accounts Rules 

3 reasons why a growing number of 

commercially savvy firms are opting 

for our Bureau Cashroom Service as 

advertised on the Law Society of 

Scotland website: 

1. Low startup costs: Setup 

costs from £500 + VAT.We supply 

everything.All you need is a 

broadband line and PC. 

2. Low monthly costs: 

Several of our smaller firms are paying 

less than £250 per month for a 

complete cashroom service.You only 

pay for the time our SOLAS trained 

cashiers spend on your accounts. 

3. Zero staff, training or 

software costs. You use our 

software and SOLAS trained cashiers 

so you do not have any staff, training 

or software costs. 

A number of our existing clients have 

kindly volunteered to discuss how they 

find the service and the difference it has 

made to their businesses. For further 

information please see the Law Society 

website or call Graham Gibson on 

01738 44 2299 (Ext 704) 

Landmark 

Information Group 

Forgotten, but not gone – introducing 

a revolution in financial asset searching 

With an estimated £15 billion worth 

of unclaimed assets in the UK, it 

might seem surprising that such huge 

sums are lying unclaimed. But it’s 

easy for individuals to lose track of 

their financial assets. 

As a consequence it is almost 

impossible for probate lawyers acting 

as an executor and/or assisting 

personal representatives to be 

confident that they have captured 

the entire estate. 

Landmark FAS is a 

groundbreaking online financial asset 

search tool designed to aid probate 

practitioners with their search 

obligations. Our relationship with a 

wide range of UK financial 

institutions enables us to deliver a 

full report, covering key financial 

assets, within 28 days. Landmark FAS 

makes searching for financial assets 

an efficient, comprehensive and 

simple process. 

Visit www.landmarkfas.co.uk

Mercedes-Benz UK 

Mercedes-Benz is proud to be a 

service provider to the Law Society of 

Scotland. Members can benefit from 

exclusive offers on new Mercedes- 

Benz cars, both private and fleet 

purchases. Our range starts with the 

A-Class from £14,290. 

New C-Class engines offer low 

CO 2 emissions from 127 g/km and 

fuel consumption of up to 58.9 mpg. 

The new E-Class range also 

■ NEXT DAY PRE-9am MAIL SERVICE 

■ HALF THE PRICE OF ROYAL MAIL 

■ A MAIL SERVICE YOU CAN RELY ON 

■ VARIOUS MEMBERSHIP OPTIONS 

■ OPEN TO ALL BUSINESS SECTORS 

■ TRACKED MAIL SERVICES 

Call Alan MacDonald on 01383 826726 

or visit the LP website via www.firstscottish.com 

benefits from BlueEFFICIENCY 

technology, part of our journey to 

emission free driving, without 

compromising performance. 

Our retailers would be delighted to 

assist with any queries, including 

demonstration and brochure requests. 

Please visit: www.mercedes-benz 

corporate.co.uk/lawsocietyscotland 

or call 0870 600 1586 


Make it Cheaper 

New: free energy contract 

checking service from Make it Cheaper 

Businesses can now discover the 

earliest date they can switch energy 

supplier and how much they can save 

in doing so. 

Make It Cheaper, the independent 

price comparison expert has 

launched a free Business Energy 

Contract Checking Service to combat 

the problem of companies being 

locked into expensive tariffs because 

their supplier only permits switching 

in narrow renewal windows. 

Make It Cheaper will carry 

out all the necessary checks to 

establish the supplier, meter 

numbers, annual consumption, 

contract end dates, when the 

renewal window opens and the 

best tariffs for each business. 

To make sure you don’t miss your 

opportunity to save: call 0800 970 2346 

or visit www.makeitcheaper.com/lawsociety-of-scotland

2009/2010 

Scottish 

Widows Bank 

Professional Mortgage 

If you’re looking to buy a new home 

or remortgage your existing one, then 

take a look at Scottish Widows 

Bank’s Professional Mortgage. It’s 

available to qualified, registered and 

practising solicitors and trainee 

solicitors.You could borrow up to 

85% of the value or purchase price 

(whatever is lower), and use flexible 

payment features such as our free 

offsetting facility.With our simple 

offset facility, you can either reduce 

The Family 

Protection Bond 

Solicitors across Scotland are helping 

their clients make funeral 

arrangements in advance as an 

essential part of will writing and 

wider estate planning services, and 

many of them are doing so by 

offering the Family Protection Bond 

from Golden Charter. 

Guaranteeing to cover all funeral 

director’s services, and significantly 

contribution to other costs associated 

with a funeral, the Family Protection 

Bond protects your clients from the 

your monthly payment OR potentially 

the term of your mortgage, whatever 

is best for you. 

See if we can help. For more 

information call us on 0845 845 0829 

quoting Law Society of Scotland. 

Visit www.scottishwidowsbank.co.uk 

YOUR HOME MAY BE REPOSSESSED 

IF YOU DO NOT KEEP UP 

REPAYMENTS ON YOUR MORTGAGE 

rising costs of funerals, and spares 

their families the burden of 

bereavement. 

Call Michael Corish today on 

0141-931-6311 to order a Family 

Protection Bond Starter Pack for your 

firm today! 

www.familyprotectionbond.co.uk 

Stewart Title Ltd 

Stewart Title Limited is a UK title 

insurance company regulated by the 

FSA. As a wholly owned subsidiary 

of Stewart Title Guaranty Company, 

Stewart Title Limited is the primary 

underwriter for European 

transactions. 

Stewart Title Limited’s operations 

in Scotland are based in Strathclyde 

Business Park, Lanarkshire. 

We provide title insurance 

specifically through solicitors for 

owners and lenders including: 

■ Bespoke Policies for defective titles 

encompassing a full range of title 

risks 

■ Self Certification Policies for 

straightforward risks 

T.M.Lewin 

Dedicated to dressing the business 

community,T.M.Lewin boast the 

largest range of shirt sizes for perfect 

comfort, as well as the greatest 

number of styles, so individual choice 

and relative exclusivity is guaranteed. 

Add to these a quality range of 

suits for both men and women and a 

wide range of accessories including 

beautiful silk ties and hand crafted 

cufflinks and you can see why we are 

the preferred choice within the legal 

sector.As Oscar Wilde famously 

stated “You never get a second 

chance to make a first impression”. 

■ Commercial and Residential Policies 

■ Policies for residential and 

commercial remortgages 

■ Online systems to facilitate quicker 

and cost effective ordering 

Stewart Title employs experienced 

and legally qualified underwriters 

who have the knowledge required of 

the Scottish market together with 

efficiency and dedication. 

Stewart Title is recognised as having 

an exceptionally strong capacity to 

meet policy holder and contract 

obligations and has thus received a 

rating of A from Fitch Ratings. 

For more information, go to 

www.stewarttitle.co.uk 

Our Corporate Discount Scheme 

was the first of its kind among 

shirtmakers and is now a firm 

favourite with legal professionals, 

offering exclusive discounts on the 

individual shirt prices seen in the 

High Street as well as other seasonal 

special offers. 

Call to Action: Visit our Society Page to see 

the latest offer voucher. In-stores – take 

the voucher to claim the prices quoted. 

Online – Shop at www.tmlewin.co.uk 

and enter promotional code SCLAW 

before making payment

Trustis 

Smartcard Reader 

Law Society of Scotland members are 

able to take advantage of a special 

deal for Trustis smart card readers for 

use with Registers of Scotland 

Automated Registration of Title to 

Land (ARTL). 

There are several benefits of 

purchasing this product: 

■ It has been tested with ARTL and 

the Registers of Scotland 

smartcards. 

■ It will be delivered with ARTL 

specific installation and use 

instructions co-written by the 

How to join the Service 

Provider Scheme 

Registers of Scotland together 

with troubleshooting FAQs, web 

links and telephone helpline 

numbers. 

■ It is provided by Trustis, supplier of 

both the smart cards and readers 

The product can be purchased for 

£27 + £2.95 P&P (plus VAT) per unit 

including delivery. 

Visit https://cardreader.trustis.com to 

purchase the product. For more 

information on ARTL, please visit 

www.ros.gov.uk/artl 

The Service Provider Scheme is open to businesses that have services or 

products suitable for the legal market, and is an ideal platform for those 

wishing to communicate to Law Society Members. 

Participants in the scheme can take advantage of a range of marketing 

opportunities such as: 

■ a dedicated business webpage on the Society’s website 

■ Use of the Service Provider Scheme logo 

■ Preferential rates for advertising, exhibitions and sponsorship 

■ Subscription to the Journal magazine and Society e-zine 

If you are interested in joining the scheme, please contact Carly 

Svendsen on 0131 476 8166 or email carlysvendsen@lawscot.org.uk 


2009/2010 

Please note that the listings within this section do not constitute or imply endorsement or recommendation by The Law Society of Scotland, nor any representation by the 

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 

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.

Professional practice Networking sites 

Have you been invited to join a 

business networking site such as 

LinkedIn? Do you know how to 

use these sites to win new work? 

Adam Gordon reveals more 

Lawyers 

can network too 

The internet has totally changed the 

way many of us live our lives. We buy 

shopping online and we use the net 

to peruse potential holiday 

destinations, cars, houses and jobs 

before making pretty much every 

major purchase or life decision. We 

may use Facebook to keep in touch 

with friends, Twitter to find out what 

our favourite personalities have been 

doing, and so on. Most of us have 

busy online lives. 

I know many lawyers who use the 

net for research, storing documents 

and many other elements of their 

professional work. But how many are 

using the opportunities now afforded 

to them for demonstrating their 

expertise, making new contacts and 

winning work? 

From the Harvard Review to the 

McKinsey Quarterly, all the reputable 

commentators have been talking 

about the openings available to 

professionals from using the 

business-focused networking sites like 

Xing, Naymz and LinkedIn. 

Exponential growth 

The popularity of these sites is 

phenomenal. Social networking sites 

make it easy for people to create a 

profile about themselves and use it to 

build a virtual network of their offline 

professional contacts and to make 

new ones online. 

According to online statistics 

company Compete Inc, in September 


this year LinkedIn had 15,051,069 

unique visitors compared to around 

8,000,000 per month at the same 

time last year. This growth is 

explosive. 

Marketing on these sites can be 

tricky because online communities 

hate blatant commercial messages. 

However, there are plenty of ways in 

which lawyers can and do benefit. 

So why is it useful? According to 

one lawyer I know, Julian Johnstone, 

head of litigation at Druces LLP in 

London: “Well, for research for one – 

as a lawyer my job is selling legal 

services and from LinkedIn I can 

easily find the identities of the 

purchasers of legal services by joining 

groups and carrying out searches. I 

have information from such profiles 

that I would not otherwise have. 

“Secondly, it’s a good way of 

cementing an approach or following 

up and then maintaining contact 

thereafter, used in conjunction with 

more traditional methods.” 

Opening doors 

Julian also cites LinkedIn as an 

excellent way of creating contacts 

amongst potential referrers, and has 

even formed a LinkedIn group for 

sociable lawyers to connect with each 

other, the purpose being to 

encourage “meet-ups” when one is in 

another’s area on business. This 

group was set up in September and 

already has over 100 members, so 

“I have 

information 

from such 

profiles that 

I would not 

otherwise 

have. Secondly, 

it’s a good way 

of cementing 

an approach or 

following up 

and then 

maintaining 

contact” 

there is plenty of participation. 

He is not the only lawyer putting 

these tools to good use. I know of 

lawyers who have hired people to 

their teams, appointed new suppliers 

and won new clients through their 

LinkedIn activities. 

The use of these tools 

demonstrates a firm’s or individual’s 

technical “savvy”, which potentially 

suggests the client experience will be 

slick. There is a certain novelty to 

some of these applications, and 

many will become fads. However, in 

our experience, their usage induces a 

sense of curiosity in prospective 

clients. One large firm I know in 

Birmingham had tried every method 

possible to entice a significant local 

plc into acknowledging them, 

without success. When one of their 

partners connected with the CFO 

directly on LinkedIn, however, the 

beginnings of a relationship had 

formed and a subsequent “coffee” 

was arranged. 

All good sense 

Here are a few of the key things you 

need to consider if you are to trial or 

embed social networking into your 

marketing efforts: 

Create a compelling profile – include 

examples of benefits you’ve afforded 

your clients. Prospects are then much 

more likely to find you when they are 

searching for a specialist. 

Target a specific audience – there is 


no point in connecting with people 

and joining communities which are 

not going to be of any relevance to you. 

Add lots of links – to your firm’s 

website home page, to relevant pages 

about your specialist area and any press 

comment about you or your teams. 

Get involved – there are some 

excellent groups out there. If you’re an 

employment specialist, for example, 

join and contribute to groups where 

HR professionals get together to 

discuss their community’s issues. 

Be a thought leader – create 

content that expresses your informed, 

expert views and connect your 

contacts with these. Don’t tell your 

contacts that you’re the best banking 

lawyer in town – prove it by starting 

and controlling the conversation. 

Make contacting you easy – I know 

decision-makers who have contacted 

one lawyer over another simply 

because their mobile phone number 

was to hand. Ensure your profile 

readily offers your direct dial, mobile 

number and email address. 

And finally, it’s worth remembering 

that there are no experts and no rules 

for the use of online professional 

networks. Their use in professional 

services is too new. So the best advice 

on taking advantage of the new 

opportunities the internet is 

presenting lawyers in winning work 

is, do what feels right and use your 

common sense. 

Adam Gordon is Director of business 

development consultancy Gordon BDM 

Ltd, Glasgow. www.winningwork.co.uk 

[Editor’s note: This article came about after I 

responded to an invitation to join Adam 

Gordon’s LinkedIn group] 


Don’t miss 

in this 

section 

Business 

networking sites 

36 

Ash Ash: Advice 

column 

37 

IT: Service via 

Facebook 

38 

Risk management: 

Communication 

40 

Professional practice Advice 

AskAsh 

An assistant leaving to work at another firm 

wonders how honest they should be during 

their exit interview, about negative experiences 

involving their present boss 

Dear Ash, 

I have handed in my notice at my 

current job in a medium sized firm. 

I’m moving to a better paid job 

with more responsibility and 

money and I couldn’t be happier. 

My dilemma is whether I should be 

truly honest about my experiences 

at my current firm when I have my 

exit interview. My time at the firm 

has not always been very pleasant; 

in particular my boss has, in the 

past, been quite nasty and indeed 

took great pleasure in poking fun 

at me in front of other colleagues 

as well as clients. I feel I should let 

the HR department know what my 

boss is really like, but I am not sure 

whether this may have future 

repercussions as the legal world is 

relatively small. 

ASH replies: 

The purpose of an exit interview is 

effectively to allow a company to 

know why its employees are 

choosing to leave and to try to 

improve on working conditions for 

the future in order to encourage 

employee retention. That is the 

theory anyway. In reality many 

employees feel reluctant about 

openly speaking about their 

experiences as there is a sense of 

fear about whether it will be used 

against them in future, therefore 

the effectiveness of such interviews 

is questionable. 

I personally believe that it is 

important to be honest about 

your experiences. However, 

although you should relay 

how you felt about being treated 

in a particular manner and indeed 

give examples, it is important to 

still retain a certain degree of 

decorum and professionalism – 

i.e. do not be tempted to call 

your boss any names during 

the conversation! 

Also bear in mind, being honest 

about your experiences does not 

mean that you have to merely 

focus upon the negatives: also 

speak about the good times you 

had at the firm. It is important that 

you provide a balanced picture 

about your experiences as this will 

give more credence to what you 

are saying and will demonstrate to 

the listener that you are not just a 

disgruntled employee with a chip 

on their shoulder. 

“Ash” is a solicitor who is willing 

to answer work-related queries from 

solicitors and trainees, which can 

be put to her via the editor: 

peter@connectcommunications.co.uk 

or by mail to Studio 2001, Mile End, 

Paisley PA1 1JS. Confidence will be 

respected and any advice published 

will be anonymised. 

Please note that letters to Ash are not 

received at the Law Society of Scotland. The 

Society offers a support service for trainees 

through its Education and Training 

Department. For one-to-one advice contact 

Education and Training Manager Katie 

Meanley on 0131 476 8105/8200, or 

KatieMeanley@lawscot.org.uk . 


Professional practice IT 

Welcome, user! 

(and you’re sued) 

The digital age has now seen court actions in other jurisdictions being raised via 

the Facebook networking site, where defendants have proved difficult to trace. 

Nicola Shiels suggests that Scotland should make efforts to catch up 

Developments in information 

technology (IT) over the past few 

decades have enabled a vast amount 

of information to be quickly 

exchanged as a matter of course. For 

many people, working methods in 

academia, practice and in everyday 

life have dramatically adapted. This 

article is a case in point: it was 

researched online and written and 

submitted without recourse to 

pen or paper. As an 

increasing amount of time 

– and money – is spent 

online, as lawyers it is 

worth pausing for a 

moment to consider how 

the law fits into this 

equation. 


Recent cases involving court 

practice rules and electronic service 

of documents from the southern 

hemisphere offer an interesting 

insight into what might be to come 

in this particular aspect of law and 

technology. The examples that 

follow demonstrate the 

advancements being made in some 

jurisdictions, where existing court 

rules have already been interpreted 

in light of modern IT use. 

Australia 

Over the past year or so in Australia, 

there have been at least two cases in 

which permission was sought for 

service of documents via Facebook. 

Unfortunately there is no public 

judgment available in either case, 

although both were considered in a 

recent article, Joanne Drane: “Are the 

English Courts Ready for Service 

through Facebook?” (2009) 30 

BLR 80, as well as in various press 

articles. It is worth looking at each 

case in a little more detail to find 

out what might one day be the 

case in Scotland. 

Citigroup v Weekaroon 

In Citigroup Plc Ltd v Weekaroon 

[2008] QDC 174 (16 April 

2008), an application was 

made in Queensland 

District Court for 

substituted service of a 

statement of claim on a 

defendant, i.e. service by 

means other than those set 

out in the applicable rules, 

subject to certain restrictions. 

The substituted service was via 

a private message over 

Facebook – a function which, 

like an email, enables a message to be 

privately sent to an inbox. 

For those not part of the 300 million 

(and counting) Facebook users, it 

might be worth pausing to explain the 

basics. A Facebook account can easily 

be set up by registering online. After 

registration, a webpage belonging to 

the account holder is created. That page 

– or certain aspects of it – may be made 

visible to others, depending on the 

level of privacy selected by the owner. 

However, the account contains other 

areas, such as an inbox, which are 

private and require a password. 

In any event, the application 

was rejected because it could not 

be proved who the page belonged to. 

In fact, in a number of instances 

involving celebrities, Facebook 

accounts have been set up in the 

names of others. In the next Australian 

case, the identity of the two account 

holders was easier to verify because 

they were linked to each other online. 

MKM Capital Property 

v Corbo and Poyser 

In MKM Capital Property Ltd v Corbo and 

Poyser, ACT Sup Ct, 12 December 2008 

(No SC 608 of 2008), MKM, a lending 

company, obtained default judgment 

against two defendants. The company 

seemed to go to considerable lengths to 

reach the defendants, but still 

experienced difficulty serving the 

default judgment using traditional 

methods. MKM’s lawyers then 

discovered that both defendants had 

active Facebook profiles, and that they 

were “friends” with one another. Again, 

by way of explanation, on Facebook an 

individual has “friends”, who might in 

real life be relatives, partners or 

colleagues. Depending on the chosen 


privacy settings, it might be possible to 

tell who an individual’s Facebook 

friends are. In this case, the friends list 

of both defendants was visible. 

The lawyers sought permission in 

the Australian Capital Territory 

Supreme Court for default judgment 

to be served on both defendants via 

Facebook. An application for 

substituted service was made, and 

granted. What is different in this case 

is the extent to which the lending 

company’s lawyers were able to show 

that the Facebook profiles were those 

of the defendants. The lawyers 

demonstrated that these profiles listed 

various personal details, such as their 

dates of birth, which were known to 

the lending company. Neither 

defendant had used any of the various 

privacy settings, which would have 

restricted the outside world’s access to 

their pages. In fact, many Facebook 

users do not change privacy options 

from the (rather lax) default setting. 

Finally, because Australian court 

rules already made provision for 

electronic service of documents, service 

via messages broadly equivalent to 

email was arguably a logical extension 

of those rules, particularly when both 

email and Facebook messages are 

private. In granting the application, the 

judge in the MKM case even stipulated 

that the documents were to be served 

privately, which rules out the option to 

post anything on the defendants’ 

“walls” – the Facebook equivalent of a 

public noticeboard. 

New Zealand 

In New Zealand too, one case saw a 

plaintiff seeking to use Facebook to 

serve papers on an apparently 

unreachable defendant. 

Axe Market Garden Ltd v Axe 

In Axe Market Garden Ltd v Axe, High 

Court of New Zealand in Wellington, 

CIV-2008-485-002676, a plaintiff 

sought to serve papers on a 

defendant who was abroad and out 

of reach. Again, no official 

judgment is available and the 

outline of the case has been taken 

from press reports. According to 

those reports, the plaintiff (a 

company headed by the father of one 

of the defendants) claimed the 

defendant had unlawfully taken 

money from the firm’s bank account. 

Ordinary service on the defendant had 

proved impossible and so the plaintiff 

sought an order to enable papers to be 

served on the defendant via Facebook. 

Here, the relationship between the 

plaintiff and defendant made it even 

easier to assert and prove the identity 


fyi 

The summary 

cause rules permit 

certain documents in 

electronic form, 

but subject to 

exclusions 

of the recipient of the documents. In 

fact, father and son had apparently 

been in regular contact via Facebook 

after the son moved to England. The 

application was successful. Again, the 

New Zealand High Court Rules 

(available at www.legislation.govt.nz) 

already made provision for electronic 

service of documents in specific 

circumstances. For any forms of service 

more publicly visible or accessible, the 

question remains whether that service 

would fall within the provisions 

relating to electronic service. 

In both Australia and New 

Zealand, then, a pragmatic approach 

has been taken to interpreting rules 

on substituted service within the 

context of electronic capabilities, as 

well as the likelihood of those being 

served using various means of IT. In 

Scotland, just as in those countries, 

many individuals make regular use of 

Facebook. It is interesting to consider 

what might happen in a civil case if 

service of documents was attempted 

in a similar manner in these islands. 

The United Kingdom 

There seem to have been no cases in 

point in Scotland, but in ordinary 

cause procedure there are currently 

no provisions for serving documents 

electronically. In summary cause 

procedure certain documents may be 

lodged, intimated or sent in 

electronic form, whether by email “or 

similar means”. However, a certificate 

of execution of service, citation or 

arrestment and a decree or extract 

decree of the court are all excluded 

from this provision. It seems, then, 

that the scope for electronic service of 

documents is limited under general 

civil procedure rules. The position 

might well be different in more 

specific areas of law. 

In England & Wales, a claim form 

and other documents may be served 

by fax and other electronic means 

where the party being served, or their 

solicitor, has previously indicated in 

writing their willingness to accept 

service in that way. The Practice 

Direction which accompanies the 

relevant part of the Civil Procedure 

Rules (CPR Practice Direction 6) sets 

out what circumstances constitute the 

“sufficient written indication” 

required. When users sign up to social 

networking sites, however, they do 

not seem to give sufficient written 

indication that they accept service. It 

is therefore unlikely that the rules 

may be interpreted to allow for 

service by Facebook. However, it is 

still possible for a party serving to 

apply for substituted service. 

This demonstrates that, despite the 

updated rules, there are limits to the 

way in which rules can keep up with 

advances in technology and, much as 

we have seen in the earlier cases from 

Australia and New Zealand, the first 

case for service of documents over 

Facebook in England & Wales is likely 

to be based an application for 

substituted service rather than the 

rules providing for electronic service. 

It is likely that the rate of 

technological advance will increase 

exponentially over the years to come 

and, at the moment, it does not 

appear that civil procedure rules in 

Scotland may be interpreted in a way 

which takes these advances into 

account. Electronic service might 

become more important as 

individuals move around more: 

regardless of which country someone 

lives in at any particular time, their 

email address – or Facebook account 

– are likely to remain the same. If 

there are further postal difficulties 

then electronic service might really 

come into its own. 

The cases discussed in this short 

piece demonstrate how rules 

elsewhere are being reinterpreted, 

perhaps even reshaped, by 

technological advances which could 

not have been predicted a generation 

or so ago. Those advances affect 

individuals regardless of where they 

live, but what is different is how a 

legal system adapts to those 

advances. It is worth asking whether 

Scotland’s current rules are able to 

adapt and remain fit for purpose in 

this modern era, or whether we 

already need to catch up. 

Nicola Shiels, Scottish Government 

Legal Directorate. 

(Any view expressed is my own personal 

opinion and not that of the Scottish Government 

Legal Directorate.) 

What is different in this case is the extent 

to which the lending company’s lawyers 

were able to show that the Facebook 

profiles were those of the defendants 


Professional practice Risk management 

Communication failures are a significant factor in the experience of claims against 

solicitors, and more effective communication could reduce significantly the 

incidence of claims in all areas of practice, says Alistair Sim of Marsh 

Communication, 

communication, 

communication 

Many complaints, disputes, claims 

and other problems 

boil down to 

misunderstandings, 

so it is little 

surprise to learn 

that poor or 

ineffective 

communication lies 

at the root of many 

claims made against 

solicitors. Reports indicate 

that the most frequent cause 

of service complaints is 

communication breakdown. 

Perhaps as many as a third 

of all Master Policy 

intimations may be attributed 

to a breakdown in 

communication or a 

misunderstanding of some sort. 

Many claims involve a factual 

disagreement between solicitor and 

client. Many involve allegations of 

failure to inform, advise or warn. 

A challenge 

Are you confident that 

misunderstandings could not 

arise between you and your 

clients? Are you sure that 

neither you nor your clients are 

proceeding on the basis of an 

incorrect assumption about a key 

aspect of the transaction? How can 

you be confident? 

The following series of case studies 

illustrates the potential for 

misunderstandings and incorrect 

assumptions. They also demonstrate 

the scope for addressing these 

communication risks by ensuring key 

points are effectively communicated 

and recorded. 


Case study 1 

Practice A acted for Mr Brown in a 

reparation claim arising out of an 

accident at work. Liability was in 

dispute, but there were different 

versions of how the accident had 

occurred from the three witnesses. 

Mr Brown was reluctant to give 

evidence, and settlement was 

negotiated at the doors of the 

court with his authority at a sum 

well below the amount sued for. 

Mr Brown subsequently made 

a claim against his solicitors 

alleging that the settlement had 

been made against his will. The 

responsible partner maintained 

that Mr Brown had agreed 

the basis of the 

settlement and given 

authority to proceed. 

If only the file had included 

an attendance note giving 

details of the discussions at 

court and confirming that 

the client had given his 

authority to settle. If only a 

confirmatory letter had been 

sent to Mr Brown. 

Case study 2 

Practice B acted for Mr and 

Mrs Green in a house 

purchase. Two years later, 

the Greens contacted the 

firm complaining that new 

neighbours were claiming 

ownership of a plot of ground 

across the road which the 

Greens had considered 

belonged to them. 

The purchase file was 

retrieved from storage, but it 

made no mention of the additional 

area of ground the Greens believed to 

have been included in what they had 

purchased. 

If only the file had included a letter 

sending out a plan and asking the 

Greens to confirm that the area 

indicated on the plan was the same as 

they understood they were buying. 

Case study 3 

Practice C acted for Mrs Elder and 

her daughter and son in law, the 

Youngers, in the purchase by the 

Youngers of a house in which they 

could all live. Mrs Elder provided the 

bulk of the purchase price, the 

balance being funded by the Youngers 

by way of a mortgage. Following a 

family fallout, Mrs Elder claimed that 

she had not been properly advised 

and should have had a contract 

enabling her to force a sale of the 

property and recover her money. 

The firm intimated the claim to 

insurers and explained that they had 

been acting only in the purchase and 

that, prior to instructing the firm, Mrs 

Elder and the Youngers had already 

agreed the basis on which they were 

purchasing, funding and occupying 

the property. The insurers’ view? 

If only the firm had written to Mrs 

Elder advising her of the risks involved 

in proceeding as planned and strongly 

suggesting that she would be well 

advised to seek separate representation 

and advice. 

Case study 4 

Practice D acted for Mrs Wright in 

connection with the preparation of an 

agreement dealing with the sharing of 

the parties’ matrimonial property on 

separation. Mrs Wright subsequently 

alleged that her solicitors had failed to 

advise her in relation to her spouse’s 

pensions and, in particular, that if she 

settled on the basis set out in the 

agreement she would be giving up her 

rights to make a claim on his pension 

rights. The solicitor was adamant that 

advice was given during a telephone 

call and at a meeting. 

If only the file had contained file 

notes of the telephone call and 

meeting, and a follow-up letter to 

record the advice given. 


Case study 5 

Practice E had acted for Mr Bigg for 

several years. An extremely 

demanding client, he produced 

regular work for the firm’s commercial 

team. When Mr Bigg’s aunt died, the 

client partner promptly introduced 

one of his trust and executry 

colleagues, assuring Mr Bigg that his 

aunt’s estate was in good hands. The 

client partner was shocked when, 

months later, he received an email 

from Mr Biggs with a veritable tirade 

about the 

length of time 

it was taking to 

wind up his 

aunt’s estate and 

alluding to loss of an 

investment opportunity as a result 

of the “delay in receiving my 

inheritance”. The email concluded: 

“If it takes the firm six months to 

wind up a simple estate, I have to 

question the firm’s ability to handle 

my other business properly”. 

No Master Policy claim arose in 

this case, but a significant client 

relationship may have been damaged – 

perhaps a significant client lost. If only 

the client had been given an indication 

of likely timescale and factors that 

might affect the timescale. 

Case study 6 

Practice F received a letter claiming for 

losses sustained by a former client “as a 

result of having been committed to 

missives to purchase prior to 

concluding a contractual bargain to sell 

her existing property”. The letter went 

on to allege that the former client had 

not been properly advised by Practice F 

of the contractual nature of the 

missives process, and had not realised 

that by concluding the bargain to 

purchase she could not escape without 

penalty from the contract to buy. 

If only there was a record of the 

client being given a clear explanation 

before conclusion of the implications of 

missives being concluded – and a record 

of the client’s instructions to proceed. 

Conclusions 

What can you do to avoid the 

communication problems illustrated 

in these case studies? Keep in mind 

the following points when meeting 

with and reporting to clients, and 

consider these points when reviewing 

your files: 

Is significant advice recorded in 

writing (and, where appropriate, 

acknowledged by the client)? 

One of the concerns currently 


The Society’s Insurance Committee has 

identified three categories of claim 

(based on the frequency, severity, or 

avoidability of claims) which it believes 

the profession should be specifically 

targeting: 

Break notice defects 

break notices not being served in 

accordance with the terms of the lease 

and therefore being ineffective 

CML Handbook breaches 

lender claims alleging breach of CML 

Handbook reporting requirements 

Overlooked securities 

& inhibitions 

claims for inhibitions or postponed 

securities which have not been 

identified from searches undertaken, 

including form 12 and form 13 reports 

The committee believes that the 

adoption of effective risk management 

being expressed in relation to the 

impact of the recession is that clients 

experiencing changed circumstances 

and financial pressures will be 

prompted to re-examine advice given 

by solicitors, settlements achieved 

and contracts documented and, with 

the benefit of hindsight, allege that 

risks should have been anticipated, 

that they should have been better 

protected, that a better 

deal should have 

been achieved for 

them. Responding 

to this sort of 

allegation will be 

assisted by having a 

well documented file as 

well as a clearly defined 

scope of engagement. 

Has the client been kept 

regularly updated in 

accordance with the terms of 

engagement? Is legal jargon 

avoided so far as possible? 

Getting terms of engagement 

right is one of the ways of 

avoiding claims and complaints. 

During more challenging 

economic conditions, when 

clients may be more inclined to 

dispute fees, and challenge the 

service provided, it is particularly 

important to ensure that clients are 

Alistair Sim and Marsh 

Alistair Sim is a former solicitor in private 

practice who works in the FinPro (Financial 

and Professional Risks) National Practice at 

Marsh, the world’s leading risk and 

insurance services firm. To contact Alistair, 

email: alistair.j.sim@marsh.com . 

The information contained in this article 

provides only a general overview of 

subjects covered, is not intended to be 

taken as advice regarding any individual 

situation and should not be relied upon as 

such. Insureds should consult their 

insurance and legal advisers regarding 

specific coverage issues. 

Marsh Ltd is authorised and regulated by 

the Financial Services Authority. 

absolutely clear about the scope of 

your engagement for the particular 

transaction and the terms on which 

services are being provided. A number 

of claims alleging negligence have 

arisen in response to proceedings 

raised for payment of the solicitors’ 

fees where there has been no evidence 

of prior client dissatisfaction. 

Has the method of charging been 

agreed with the client in advance and 

set out clearly in terms of 

engagement/business? Is the client 

kept advised of changes in expected 

costs and the reasons for this? 

Has the client been kept regularly 

updated in accordance with the 

terms of engagement? Is legal 

jargon avoided so far as possible? 

Three top risk management targets 

measures could effectively eliminate 

the incidence of these claims. 

Identify possible gaps in your 

systems and procedures, and prioritise 

the actions you/your firm will take to 

address them. 

Impact of effective communication 

on top three targets 

How could improved communication 

have a beneficial impact on the 

targeted categories of claim? 

Ineffective break notices may be 

attributable to “process errors” where 

notices have been served too late or by 

the wrong method, but in some cases 

they are attributable to 

“communication errors or omissions”. 

The tenants’ solicitors may be unaware 

of a change of landlord, but the tenants 

certainly ought to know. Making sure 

the client fully appreciates the vital 

importance of naming/serving notice 

on the correct landlord is essentially a 

matter of effective communication. 

CML Handbook breaches: 

process failure or communication 

failure, or both? Allegations being 

made by lenders at this time include 

that solicitors have failed to report facts 

in accordance with the CML Handbook. 

In some of these situations, it may have 

seemed to the solicitor unclear whether 

it was strictly necessary to report 

particular facts because (a) the lender 

must be assumed to be aware of the 

facts already, or (b) it was unclear 

whether the lender would consider the 

facts material and therefore expect the 

facts to be reported. As far as the 

Master Policy insurers are concerned, 

the prudent approach to be adopted is 

“If in doubt – communicate!” 


Professional briefing Criminal court 

At last Young v Heatly has been overruled – but it still may not need much 

of a public element to turn private conduct into a breach of the peace, as 

Charles Stoddart explains in his latest survey of the criminal courts 

Keeping the peace 

Breach of the peace in private 

There was always something odd 

about the decision in Young v Heatly 

1959 JC 66. The idea that conduct, 

however reprehensible, which occurs 

in private and without affecting the 

community should give rise to a 

charge of breach of the peace, as 

opposed to some other crime, is not 

one which has ever sounded quite 

right. But the generations of Scottish 

criminal lawyers which have criticised 

the decision (but have had to live 

with it) can now rest easy: it has been 

overruled by a bench of five judges in 

Harris v HMA [2009] HCJAC 80 

(opinion published 8 October 2009). 

Whereas in Young the locus of the 

crime was a teacher’s private room at 


a technical school where the deputy 

headmaster made indecent 

suggestions to several of his pupils, in 

Harris the locus of the alleged breach 

of the peace was police headquarters 

in Dundee, where (according to the 

indictment held to be relevant by the 

sheriff) the accused had made threats 

to two police officers in the course of 

various conversations with them, 

which threats were said to have 

placed each of them in a state of fear 

and alarm. The accused appealed 

against the decision on relevancy, 

resulting in a full debate before the 

High Court of all the authorities, 

including the impact of ECHR. 

Familiar cases such as Ferguson 

v Carnochan (1889) 16R (J) 93, Smith v 

Disturbance 

or potential 

disturbance 

of even a small 

group of 

individuals in 

a private house 

might suffice, 

provided there 

was a realistic 

risk of it being 

discovered 

Donnelly 2002 JC 65 and Jones v 

Carnegie 2004 JC 136 were all analysed 

again, the court confirming that a 

conjunctive test was required: there 

had to be conduct which presented as 

genuinely alarming in its context to 

any reasonable person and which 

threatened serious disturbance to the 

community. That was not what had 

happened in the teacher’s room in 

Young v Heatly, a decision which was 

found to be erroneous in a number of 

important respects, particularly 

because of the absence of a public 

element to what had occurred: there 

was nothing which produced or was 

likely to produce alarm in the minds of 

the lieges. Nor did the conduct 

complained of in the instant case have 


this vital element; it was not suggested 

that any of the officers involved might 

have been provoked to react by taking 

the law into his own hands or that 

otherwise there could have been any 

apprehension of a disturbance to the 

public peace. 

But the court declined to provide 

definitive guidance as to what public 

element would be sufficient to 

transform private conduct into a 

breach of the peace, observing that 

disturbance or potential disturbance 

of even a small group of individuals 

in a private house might suffice, 

provided there was a realistic risk of it 

being discovered. The appeal was 

allowed and the sheriff directed to 

dismiss the charges as irrelevant. 

Voice samples at ID parades 

It has long been the practice in 

Scotland that a person participating in 

an identification parade can be asked 

to speak, so that what he says and how 

he says it can be compared by a witness 

at the parade to the voice of the person 

he heard at the material time of the 

crime. Further, if the solicitor attending 

the parade on behalf of the suspect is 

concerned that the parade is in any way 

unfair, he should make his objection 

known at the time; and likewise if at 

the later trial the evidence of what 

happened at the parade is thought to 

be objectionable, it should be made 

the subject of objection when it is led. 

In terms of s 118(8) of the 1995 Act, 

failure by the defence representative 

to object timeously will bar a 

successful appeal. 

In McFadden v HMA [2009] 

HCJAC 78 (8 October 2009), no 

objection was taken during the trial 

to the leading of evidence of voice 

identification, a decision 

characterised by the appeal court as a 

proper exercise of professional 

judgment by trial counsel and giving 

no rise to Anderson criticism. In so 

doing, the court rejected an ECHR 

ground of appeal to the effect that the 

accepted Scottish practice of requiring 

voice samples was contrary to article 

6 and could be characterised as a 

breach of the right to silence or the 

right not to incriminate oneself. 

Domestic case law had sought to find 

the correct balance between the 

public interest and the interests of the 

accused and to address the issue of 

proportionality; in the circumstances 

of the present case, there had been a 

fair trial and the appeal was refused. 

Discounting disqualification 

One of the yet-unanswered problems 

thrown up by the system of sentence 


Don’t miss 

these 

essential 

briefings 

Criminal court: 

Roundup 

42 

IP: Google 

AdWords case 

44 

Criminal practice: 

Crown disclosure 

45 

Agriculture: Tenant 

improvements 

46 

Sport: Refereeing 

by television 

47 

EU: Services 

Directive 

48 

Discipline Tribunal 

49 

Websites: 

Advocates 

50 

Book reviews: 

Employment; 

Criminal Procedure 

51 

discounting is whether in a road 

traffic case the ancillary elements of 

the sentence should be discounted. 

What about the length of the 

disqualification and/or the number of 

penalty points? Should any discount 

be applied to either or both if and 

when the offender pleads guilty? 

There has been no consistent 

approach taken in the sheriff court, 

but this may change once the appeal 

court has considered the remitted 

appeal in Ross v PF Aberdeen [2009] 

HCJAC 82 (22 October 2009). 

The appellant had pleaded guilty 

by letter to a contravention of s 3 of 

the Road Traffic Act 1988. His fine 

was discounted by one third, but no 

discount was applied to the number 

of penalty points imposed, in line 

with Stewart v Griffiths 2005 SCCR 

291. He appealed against this 

decision, citing the emerging practice 

of discounting periods of 

disqualification, on the basis that one 

component of the latter might be 

punishment (see Rennie v Frame 2005 

SCCR 608) and that the same might 

be said for penalty points. In order 

that there might be definitive 

guidelines on the sentencing issues 

thus raised, the case was remitted to a 

bench of five judges. 

Evidence on commission 

The possibility of taking evidence on 

commission in a criminal case was 

first introduced in Scotland in 1980 

and is now to be found in s 272 of 

the 1995 Act. Applications to take 

evidence in that way have been rarely 

encountered, but five were recently 

granted by Lord Brodie in HMA v RM 

[2009] HCJ 05 (28 October 2009). 

As might be expected, the cases 

were fact-specific: the petitions were 

in presented by the Crown with a 

view to taking evidence from five 

elderly complainers who were 

housebound and unable to come to 

give evidence in court. It was alleged 

that each had been the victim of a 

fraud perpetrated after the accused 

had obtained entry to their homes. 

What was proposed was an open 

commission with the trial judge as 

commissioner attending at the home 

of each complainer, along with 

counsel and solicitors on both sides, a 

shorthand writer and clerk of court, 

but not the accused. 

Lord Brodie rejected objections 

based on s 272(3)(a) and (b) of the 

1995 Act, holding that the evidence 

was necessary for the proper 

adjudication of the trial and that there 

would be no unfairness to the accused 

in the proposed procedure. Although 

the latter would not be present when 

the witnesses were examined, he 

would see the transcript of their 

evidence before it was read out in 

court. In the unlikely and exceptional 

event that the cross examination 

previously conducted had been less 

than complete, it would be possible to 

take further evidence from the 

witness. In addition, modern practice 

was much more familiar with 

provisions (such as those introduced 

by the Vulnerable Witnesses 

(Scotland) Act 2004) designed to 

facilitate the giving of evidence by 

more or less indirect means. 

And finally? 

In the August issue I commented 

on the decision in McIntyre v HMA 

(now reported at 2009 SCCR 719), 

in which the High Court held, 

founding on s 124 of the 1995 Act, 

that once an appeal against 

conviction has been determined, 

the appeal cannot be reopened in such 

a way as to allow consideration of a 

further purported ground of appeal 

against conviction, apart of course 

from the situation where the case is 

referred to the court by the Scottish 

Criminal Cases Review Commission. 

But in Harris, Petr [2009] HCJAC 85 

(opinion published 27 October 2009), 

following a decision by the 

Commission not to make such a 

reference in respect of an appeal 

against conviction which had been 

refused in 2006, a petition to the nobile 

officium was presented. There, the 

petitioner sought to reopen by that 

means the 2006 conviction, arguing 

simply that McInytre was “wrong”. 

Not surprisingly, this submission 

was emphatically rejected by the High 

Court, since no attempt was made to 

distinguish that decision, or the 

earlier case of Cochrane, Petr, 2006 

SCCR 213. The petition was 

dismissed as incompetent. It was 

held that s 124 had been properly 

interpreted in McIntyre; it was not (as 

the petitioner contended) concerned 

only with the prevention of appeals 

to the House of Lords. The principle 

of stare decisis applied, and the 

petitioner had exhausted his rights 

under the statutory scheme. 

However, that may still not be the 

end of this saga, for a bench of five 

judges is expected to rule soon in a 

number of further similar petitions 

by convicted persons, including Nat 

Fraser and Luke Mitchell. As they say, 

watch this space. 

Charles Stoddart is a criminal law 

author and a former sheriff 


Professional briefing IP 

The Advocate General’s opinion in the Google AdWords case has 

divided commentators; but will it be followed by the European Court? 

On the mark? 

Recently the European Court of 

Justice’s Advocate General, Poiares 

Maduro, delivered his opinion on the 

ongoing dispute between Google and 

three French companies regarding 

Google’s AdWords service. The 

opinion had been eagerly awaited by 

lawyers and brand owners seeking 

clarity on whether AdWords 

constitutes trade mark infringement. 

The opinion, that the service does not 

in itself constitute an infringement, 

has been met with surprise and leaves 

much uncertainty pending the final 

decision of the court. 

Google AdWords is a service 

whereby parties can pay to have 

their web address displayed as a 

“sponsored link” on the Google 

results page. The service centres on 

“keywords” which, when entered 

into the search engine, trigger the 

return of sponsored web links. 

Controversy centres on the fact that 

one party can obtain the AdWords 

for another party’s trade marks. For 

example Adidas could obtain the 

AdWord, “Nike”. Brand owners have 

been concerned about this, 

particularly with regard to potential 

misuse by the sellers of counterfeit 

goods. Indeed one of the French 

actions referred to the ECJ concerns 

Louis Vuitton and a counterfeiter. 

Limited use 

The Advocate General considered 

article 5 of the Trade Mark Directive 

(89/104), which forms the basis of 

UK trade mark legislation. Central to 

his assessment was his interpretation 

of article 5(1), which sets out the 

grounds for trade mark infringement. 

He opined that there are four 

cumulative conditions in relation to 

the use of trade mark(s) which must 

be met in order to establish 

infringement, namely: 

the owner of the relevant mark(s) 

must not consent to the use; 

the use must be in the course of 

trade; 

the use must relate to goods or 

services which are identical or similar 


to those covered by the trade mark(s); 

and 

the use affects or is liable to affect 

the essential function of the trade 

mark(s) (to guarantee to consumers 

the origin of the goods or services), by 

reason of a likelihood of confusion 

on the part of the public. 

Whilst the Advocate General 

considered that the first two 

conditions had been satisfied, he 

opined that permitting advertisers to 

select AdWords keywords which 

correspond to trade marks, so that 

adverts for sites are presented as 

results of searches involving those 

keywords, does not meet the 

conditions required to establish 

infringement. He commented: “no 

good or service is sold to the general 

public. The use is limited to a 

selection procedure which is internal 

to AdWords and concerns only 

Google and the advertisers. The 

service being sold, and to which the 

use of the keywords corresponding to 

the trade mark is linked, is therefore 

Google’s own service, AdWords”. 

Furthermore, he did not consider 

that the essential functions of trade 

marks are compromised, 

commenting: “uses by Google, in 

AdWords, of keywords which 

correspond to trade marks do not 

affect the other functions of the trade 

mark, namely guaranteeing the 

quality of the goods or services”. 

Whilst in his opinion infringement 

had not been established, reference was 

made to the trade mark proprietor’s 

right to address issues under national 

liability laws if specific occurrences 

giving rise to illegal damage to their 

trade mark could be shown. 

Reaction and follow-up 

There are some who support the 

Advocate General’s opinion, especially 

those who wish to restrict the scope of 

the exclusivity afforded to trade mark 

owners. Indeed the Advocate General 

was concerned that a finding of 

infringement by the ECJ would extend 

trade mark protection, “to rule in 

Some 

commentators 

argue that the 

Advocate 

General has 

misinterpreted 

article 5(1) as 

there is not 

always a need 

to show a 

likelihood of 

confusion to 

establish 

trade mark 

infringement 

effect, that the mere possibility that a 

system – in the present cases, AdWords 

– may be used by a third party to 

infringe a trade mark means that a 

system is, itself, in infringement”. 

There are many, however, who have 

been surprised by and are critical of 

the opinion. Obviously it has not 

been welcomed by brand owners, 

who will now have to consider 

AdWords, and their associated costs, 

as an additional strand of their brand 

protection and marketing policy. 

There has also been legal criticism, 

with some commentators arguing 

that the Advocate General has 

misinterpreted article 5(1) as there is 

not always a need to show a 

likelihood of confusion to establish 

trade mark infringement. 

Whilst Google will surely be 

delighted, the final judgment of the 

ECJ is awaited and although an 

Advocate General’s opinion is 

persuasive, it is non-binding. 

In the interim the position is far 

from clear. It is worth noting that a 

French court ordered eBay to pay the 

Louis Vuitton Moet Hennessy group 

€80,000 for using the group’s trade 

marks as “keywords” only the day 

before the release of this opinion. 

The final decision of the ECJ is 

expected next year. Hopefully this will 

offer some certainty on these matters. 

Until then, brand owners would be 

wise to evaluate their key brands and 

whether AdWords should be obtained 

to maintain their value. 

Ross Nicol, Associate, Maclay 

Murray & Spens LLP 


Professional briefing Criminal practice 

Crown disclosure: 

the next level 

COPFS has adopted the encrypted pen drive as its primary 

method of disclosure of information to defence agents, but 

agents must first be registered as data controllers 

In April 2009, the Crown Office and 

Procurator Fiscal Service (COPFS) 

introduced new disclosure procedures 

whereby information disclosed to 

defence agents is provided 

electronically on pen drives. 

One of the main driving forces 

behind this change is a need for 

COPFS to comply with the seventh 

data protection principle to ensure 

that any information disclosed by 

them is adequately protected against 

accidental loss or damage. The pen 

drives, which are encrypted, can only 

be accessed by solicitors on receipt of 

a password, provided by COPFS. 

Defence agents as data controllers 

As recently highlighted in this 

magazine (Journal, August, 27), 

solicitors are considered processors 

of personal information for the 

purposes of the Data Protection Act 

1998. As solicitors determine the 

purpose for which and the manner in 

which personal data are processed, 

they are also data controllers. If any 

of that information is processed 

electronically, even if it is just to 

complete legal aid applications or 

write submissions, then solicitors 

must notify the Information 

Commissioner’s Office (ICO) 

under the 1998 Act that they 

are data controllers. 

Failure to notify the ICO is a strict 

liability offence under the 1998 Act 

and the ICO is currently targeting 

solicitors’ and accountants’ firms on a 

regional basis, including legal firms 

across Scotland. 

As data controllers, solicitors also 

have a duty to comply with the seventh 

data protection principle by putting in 

place such measures as are necessary to 

ensure that all information they 

process is kept secure. 


Greener Scotland 

In addition, by reducing the amount 

of paper generated by cases, these new 

disclosure processes will also comply 

with the Government’s Greener 

strategic objective to improve Scotland’s 

natural and built environment. 

Defence agents are then able to 

print only such information as they 

require in the preparation and 

presentation of the defence. 

The new process is also in line with 

the current Government agenda in 

relation to the expansion and 

encouragement of electronic business 

in Scotland in the 21st century. 

Implementation of 

the new processes 

COPFS has introduced this new 

policy following consultation with 

the Assistant Information 

Commissioner for Scotland and the 

Law Society of Scotland. 

As defence agents must be registered 

as data controllers if they process 

information electronically, COPFS 

must be satisfied prior to disclosure on 

pen drive that the agent has notified 

the ICO. Defence agents are, therefore, 

asked to sign an undertaking 

confirming that they registered prior 

to receiving their first pen drive. 

With effect from 31 October 2009, 

COPFS has adopted disclosure by 

encrypted pen drive as the primary 

method of disclosure and COPFS will 

cease to provide information hard copy, 

except in exceptional circumstances or 

where the information cannot be 

uploaded onto a pen drive. 

As a responsible public authority, 

COPFS will not provide disclosure 

information to any agent who refuses 

to provide the written undertaking 

confirming that they are registered as 

data controllers. 

As data 

controllers, 

solicitors also 

have a duty to 

comply with the 

seventh data 

protection 

principle by 

putting in place 

such measures 

as are 

necessary to 

ensure that all 

information 

they process is 

kept secure 

Legal requirement 

COPFS secure website 

The pen drive, however, is only the 

first stage in COPFS’s shift towards 

electronic disclosure. COPFS is 

working with an external software 

company to design a secure website 

through which information will be 

disclosed to the defence. 

An electronic disclosure file will be 

created on the COPFS database and 

then downloaded onto a secure 

disclosure website which defence 

agents can then access to obtain the 

disclosure information in respect of a 

particular case for which they have 

been instructed. 

Testing of this new website is 

currently underway with a small 

number of defence agents in Glasgow 

and it is anticipated that this new 

system will be rolled out in early 2010. 

There is no doubt that the 

introduction of these new processes 

by COPFS will be a culture change 

for all concerned, but it should 

provide a more efficient and secure 

method of disclosure of personal, 

and often sensitive, information to 

defence agents. 

Angela Farrell, Policy Division, COPFS 

The seventh data protection principle states: 

“Appropriate technical and organisational measures 

shall be taken against unauthorised or unlawful 

processing of personal data and against accidental loss 

or destruction of, or damage to, personal data.” 


Professional briefing Agriculture 

Tackling 

improvements 

The Land Court has clarified the approach to be adopted 

in considering tenants’ proposed part II improvements 

Practitioners will know that, to 

preserve his right to compensation at 

waygo, the tenant of an agricultural 

holding requires to give notice, under 

s 38(1) of the Agricultural Holdings 

(Scotland) Act 1991, “of his intention 

to carry out… [an improvement]… 

and of the manner in which he 

proposes to do so”. Section 39 allows 

the landlord to give counter-notice 

objecting to the improvement or the 

manner in which it is to be carried 

out. The tenant may then seek the 

Land Court’s approval of the 

proposed improvement. This may be 

given unconditionally or on terms 

(including a reduction in the potential 

compensation), or withheld. 

These provisions were considered 

by the court in R & M Whiteford v 

Trustees for Cowhill Trust (Application 

RN SLC/174/08), 29 July 2009. 

Messrs Whiteford, a limited 

partnership, were tenants of four 

Dumfriesshire farms collectively 

known as “Abbey Farm” and two 

further holdings, under a 40 year 

lease from 1987. They ran the 

holding collectively as a dairy farm. 

They served notice of their intention 

to install a “voluntary milking 

system” (VMS), comprising a number 

of robotic milking units. Following a 

counter-notice they applied to the 

court for approval. 

Defective notice? 

The landlords argued (i) that the 

tenants’ notice was so deficient in its 

description of the work and how it 

was to be carried out that it was 

invalid; and (ii) that the improvement 

would lead to over-capitalisation of 

the holding. The notice was attacked 

on several fronts, including that it did 

not disclose the number of VMS units 

proposed and, to summarise, that 

discrepancies on methodology 


between the notice, a later notice 

(subsequently withdrawn) and the 

planning application made it 

impossible for them to know the 

tenants’ true intentions. 

The court held that, in deciding on 

the validity of a s 38 notice, it could not 

look beyond the four corners of the 

notice itself. The only criticism in that 

respect was failure to specify the 

number of units, which the court 

regarded as a point of detail, given that 

it was clear what kind of system was to 

be installed. (The omission was made 

good on the evidence, but this did not 

sway the court.) It did, however, 

observe that it is in the tenant’s interests 

to make a notice full and detailed, not 

only to avoid it being challenged as 

such but to avoid the risk that some 

element of the improvement is not 

eligible for compensation at outgo, 

because the landlord has been 

given insufficient notice. 

Test for approval 

On the landlords’ second objection, 

the court held that the test in 

The court 

viewed this as 

an objective 

test to be 

applied without 

regard for what 

it thought the 

applicants 

should be 

doing or 

might do 

instead 

assessing whether it should approve 

(unconditionally or on terms) or 

disapprove an improvement was the 

formulation in Gill, Agricultural 

Holdings (3rd ed), distilling previous 

case law: whether it was “reasonable 

and desirable” on agricultural 

grounds for the efficient 

management of the holding. 

The court viewed this as an objective 

test to be applied without regard for 

what it thought the applicants should 

be doing or might do instead. In any 

given situation there might be a range 

of possibilities (from “adventurous” to 

“safe”), all of which were reasonable. 

However, it then appeared to contradict 

itself by observing obiter that it was 

entitled to refuse consent if, in all the 

circumstances (including the 

availability of the alternative), it 

considered that there was an alternative 

which was clearly preferable to the 

tenant’s proposal, albeit both were 

reasonable on their own terms. 

Although the court found that the VMS 

was not the only means available for 

improving the efficiency of Whitefords’ 

dairy enterprise and that what was 

proposed was financially the more 

risky of the options available, it was 

nevertheless reasonable and desirable 

on agricultural grounds for the efficient 

management of the holding and, 

accordingly, should be approved. 

As a subsidiary issue, the landlords 

argued for a reduction in the tenants’ 

ultimate claim for compensation, 

since a clause in the lease that the two 

holdings were to be used “as livestock 

and cropping units” meant that the 

court, in applying the reasonable and 

desirable test, had to confine itself to 

Abbey Farm: the other units could 

not be used for grazing dairy stock, or 

growing feed for dairy cattle 

elsewhere, and could, accordingly, 

not be taken into account in assessing 

the carrying capacity of the holding 

for dairy purposes. The court, 

however, inferred that the restriction 

prohibited use as dairy units as such, 

but not use for anything to do with 

dairying, however remotely, and 

grazing and cropping for dairy stock 

was permitted. 

The case, accordingly, covered a 

wide range of interesting points – in 

particular the court’s exposition of the 

test to be applied to a proposed 

improvement and its observation on 

the framing of a tenant’s notice in 

order to preserve the right to 

compensation, although this restates 

what I have always understood to be 

best advice. 

Alasdair G Fox, Anderson Strathern LLP 


Can rules be devised to protect the integrity of 

sporting contests by ordering replays, or allowing 

television evidence to inform refereeing decisions? 

In the wake of Les Bleus’ questionable 

triumph over the Republic of Ireland in 

the playoff match to reach FIFA’s 2010 

World Cup finals, the game of football 

has come under significant scrutiny. 

The goal that France scored to decide 

the contest was clearly shown by 

television to have involved the football 

connecting with a French player’s hand, 

twice, unseen by the referee, in the 

immediate buildup to the crucial goal 

being scored. If spotted, the goal would 

not have stood. 

This “injustice” led to the 

Republic’s football association and 

politicians calling for a replay. FIFA 

are considering the introduction of a 

rule allowing for replays in their 

tournaments, and possibly the 

introduction of television replays 

and further match officials for the 

2010 finals, to improve the quality 

of decision making during the 

sporting contest. 

A replay rule? 

Is a replay rule likely, or indeed 

desirable? Apart from the obvious 

significant practical difficulties of 

organising a replay within a 

congested fixture list and securing the 

release of players (whose release from 

club football can only be compelled 

during specific “international” fixture 

windows), a rule would be inherently 

dangerous for the sporting body 

using it. It would grossly undermine 


Camera 

angles 

In American 

football, played 

under the 

auspices of the 

NFL, the use of 

television is 

more widely 

available. 

Teams have the 

ability to issue 

a set number of 

challenges to 

refereeing 

decisions 

Professional briefing Sport 

the role of the match officials and the 

concept of finality enshrined in the 

Laws of the Game, per law 5: “The 

decisions of the referee regarding facts 

connected with play, including 

whether or not a goal is scored and 

the result of the match, are final”. 

This principle is echoed in many 

different sports and is regularly upheld 

by the refusal of the Court of 

Arbitration for Sport and the Olympic 

Association to allow any challenge, 

whether direct or indirect, to sporting 

decisions that are taken on field and in 

play. Generally, the civil courts have 

been very content to decline to 

interfere in sport by reviewing 

“sporting decisions”. In any rule that 

would allow FIFA to intervene and 

order a replay, some form of discretion 

would likely be necessary and FIFA 

would, in exercising that discretion, 

leave itself open to challenge on the 

decision making process. Otherwise 

the agreement of both participating 

sides would be required. In the writer’s 

view, FIFA is likely to be very reluctant 

to introduce a replay rule. 

TV evidence and 

additional officials? 

Televised broadcasts of football 

matches have become widely 

available through terrestrial 

television, satellite television, internet 

streaming and now even iPhones and 

other handheld devices. The wealth of 

English soccer is underpinned by 

significant broadcasting agreements. 

Sponsors are drawn to televised 

matches. Managers, pundits and the 

public alike believe that the 

introduction of a television match 

official is inevitable and only a 

question of time, to help preserve the 

sporting contest’s credibility. 

However, the question that FIFA will 

ultimately have to answer in 

considering whether to introduce 

video evidence, is the extent to which 

it should be used; and how to 

translate that into a meaningful and 

certain sporting law. 

In rugby union a “television match 

official” (TMO) is appointed for 

many high profile televised matches. 

The TMO takes advantage of up to 13 

different camera angles available in 

the outside broadcast unit to issue a 

live ruling when requested by the 

match referee. Rugby’s rules provide 

that the TMO can only be asked 

whether or not a team has grounded 

the ball so as to score a try. The 

concept works well; the TMO may 

only rule on this aspect of play, and 

not matters such as a forward pass in 

the phase of play leading to the score. 

In American football, played under 

the auspices of the NFL, the use of 

television is more widely available. 

Teams have the ability to issue a set 

number of challenges to refereeing 

decisions in any phase of play and 

not simply scoring opportunities. 

It has been mooted that television 

could be used in football to determine 

whether the ball crossed the line 

between the posts, commonly the 

subject of controversy. Such an 

analysis, if allowed, would be easy to 

provide for and readily understood. 

Yet it would not be available to rule 

out a goal such as that controversially 

scored by France, where the alleged 

foul was in the buildup phase. If 

television is going to further influence 

football and take an active role in the 

outcome by assisting in refereeing 

decisions, FIFA’s draftsmen will need 

to ensure that the new rule is precisely 

framed in order that it clearly specifies 

when the televised pictures may be 

reviewed, that the rule may be 

consistently applied, and to underpin 

the credibility of the sporting contest. 

However, no such rule will entirely 

prevent or remedy human error, 

whether it be the referee missing a foul 

or the defenders not clearing the ball, 

which is as much a feature of sporting 

contests as is sporting prowess. 

Bruce A Caldow, Partner, Harper 

Macleod LLP 


Professional briefing Europe 

The imminent Services Directive will assist service 

provision generally in the way already enjoyed by 

lawyers, but will have some impact on the profession 

Cutting red 

tape in Europe 

Whilst the business of the European 

Union is notoriously quiet between 

Christmas and New Year, with 

“Brussels” shutting down for the 

festive season, a major reform is due 

to take place on 28 December when 

Directive 2006/123 on services in the 

internal market (the Services 

Directive) comes into force in 

national law. The UK Government is 

implementing the Services Directive 

through the Provision of Services 

Regulations 2009 (draft at 

www.opsi.gov.uk/si/si2009/draft/ukd 

si_9780111486276_en_1), which 

apply UK wide. It published a note 

titled “Guidance for Business on the 

Services Regulations” in October: 

www.berr.gov.uk/files/file53100.pdf . 

Barriers remain 

The Services Directive is designed to 

simplify provision of services across 

borders by removing legal and 

administrative barriers to trade in this 

sector. According to recent statistics 

the services sector is the largest, most 

dynamic economic sector in the EU, 

accounting for around 70% of 

both output and employment. 

However, as the UK 

Government note shows, 

it yields relatively low shares 

of intra-EU trade (24%) and 

investment. 

Seeking to give full effect 

to the Internal Market for 

services, the Services Directive 

requires each member state 

to remove unjustifiable or 

discriminatory requirements 

affecting the setting up or carrying 

on of a relevant service activity in 

that country. It also facilitates cooperation 

between regulatory 

authorities; sets up “one stop 

shops” for services 

providers 


According 

to recent 

statistics the 

services sector 

is the largest, 

most dynamic 

economic 

sector in the 

EU, accounting 

for around 

70% of both 

output and 

employment 

to find information and complete the 

necessary formalities in one place 

(Single Point of Contact); imposes a 

general obligation for procedures to 

be electronic; and sets out quality of 

service provisions. 

It applies to a whole raft of service 

providers from professional services 

such as lawyers, accountants and 

actuaries to consumer services such as 

tour operators, travel agents, plumbers 

etc; but not to notaries, financial service 

providers, electronic communication 

providers, or health services. 

Legal profession: topping up 

Cross-border supply of services is 

not new to the legal profession, one 

of the key professions already taking 

advantage of the right to free 

movement in Europe. Indeed, the 

Services Directive affects the legal 

profession only to the extent that it 

does not conflict with the provisions 

of the legal professions’ “own” 

directives, Services of Lawyers 

(Directive 77/249) and 

Establishment (Directive 98/5). The 

former gives an EU lawyer the right 

to practise on a visiting or temporary 

basis in a member state other than 

that in which the lawyer qualified, 

and the latter gives an EU lawyer 

the right to practise on a 

permanent (“established”) basis 

under the lawyer’s home state 

title in a member state other than 

that in which the lawyer 

qualified. In practice this means 

that the provisions of the 

Framework Services Directive will 

top up the provisions of the two 

lawyers’ directives. 

It is actually the competent 

authorities, the regulatory bodies, 

who are impacted by the 

Services Directive to a 

large extent. 

The obligation to co-operate with 

other regulatory bodies ramps up the 

informal co-operation and liaison to 

date. It does so by setting up an 

electronic information exchange – the 

Internal Market Information System 

(IMI). Within this exchange the Law 

Society of Scotland will be able to ask 

the Paris Bar Association whether Ms 

Avocat has qualified to practise, 

whether she has any disciplinary 

findings against her and for evidence 

of her practising certificate. This can 

all be done through pre-translated 

tick boxes and transmitted directly 

from Edinburgh to Paris and back. 

Moreover, the emphasis on electronic 

communication leads to the 

obligation for all applications to be 

processed electronically. 

Now this has caused something of 

a headache as most regulatory bodies 

do not yet have fully automated 

processes for applications for entry 

into the profession or renewals. In 

addition the UK regulatory bodies 

have maintained that original copies 

of certificates must be provided and it 

is in the public interest for this 

requirement to be maintained. 

A further issue for the legal 

profession is the question of deemed 

authorisation. Again the emphasis on 

swift access to markets led to a 

provision in the Services Directive, 

whereby if an individual (e.g. a tour 

operator) had completed the relevant 

formalities to supply their service and 

the deadline for responding had 

passed, that individual would be 

deemed to be authorised to supply 

their service in the UK. However, the 

Law Society of Scotland had argued 

that this is not appropriate for the 

legal profession and, along with the 

Solicitors Regulatory Authority for 

England & Wales, lobbied the 

Ministry of Justice for a system of 

deemed refusal justified on overriding 

reasons of public interest. 

States of readiness 

Given the scale of reforms, there is 

concern that a number of member 

states may not have their 

implementing provisions in place in 

time. Business organisations are 

concerned about this leading to a 

patchwork of rules and systems, the 

very thing the Services Directive was 

due to combat. However, the UK 

intends to meet the deadline and the 

legal profession, consumers and 

business should be ready for it. 

Julia Bateman is Head of the Law 

Societies Joint Brussels Office. 

e: Julia.Bateman@lawsociety.org.uk 


Professional briefing Discipline Tribunal 

Scottish Solicitors 

Discipline Tribunal 

This month’s cses concern a solicitor covering up her 

non-solicitor husband’s dishonesty, and numerous 

breaches of the Accounts Rules and other matters 

Catriona MacFarlane 

A complaint was made by the 

Council of the Law Society of 

Scotland against Catriona Margaret 

MacFarlane, solicitor, Newton 

Mearns, Glasgow (“the respondent”). 

The Tribunal found the respondent 

guilty of professional misconduct in 

respect of her failure to disclose to her 

client the extent of her knowledge of 

the actings of her husband, a 

mortgage broker, her failure to advise 

her client timeously to seek separate 

independent advice, and her failure to 

withdraw from acting for her client, 

all in breach of the Code of Conduct 

for Scottish Solicitors 2002. 

The Tribunal censured the 

respondent, fined her in the sum of 

£2,500, and directed in terms of 

s 53(5) of the Solicitors (Scotland) Act 

1980 that for a period of three years, 

any practising certificate held or issued 

to the respondent shall be subject to 

such restriction as will limit her to 

acting as a qualified assistant to and to 

being supervised by such employer as 

may be approved by the Council or 

the Practising Certificate Committee 

of the Council of the Society. 

It was clear to the Tribunal that the 

respondent’s conduct amounted to 

professional misconduct. The 

respondent had a duty by 7 February 

2007 to give a full disclosure to her 

client of her state of knowledge about 

missing funds appropriated by her 

husband and the fact that she was 

married to Mr MacFarlane. The Tribunal 

considered that there was not only a 

conflict of interest in this situation but 

also an absolute duty on the 

respondent to advise her client to seek 

separate independent advice. The 

respondent’s conduct left her client in a 

vulnerable position for 19 days, which 

clearly caused a lot of distress to her 


client and his wife and left them 

exposed to an unacceptable risk. The 

Tribunal considered that the 

respondent had acted very irresponsibly 

and that her conduct was completely 

contrary to the standards expected of a 

solicitor. The Tribunal considered that a 

restriction on the respondent’s 

practising certificate was required in 

order to ensure protection for the 

public and that the respondent is 

properly supervised. The Tribunal also 

imposed a fine of £2,500 to reflect the 

seriousness with which the Tribunal 

viewed the respondent’s behaviour. 

John James Smith 

Three complaints were made by 

the Council of the Law Society of 

Scotland against John James Smith, 

solicitor, John J Smith & Co, Dalmuir, 

Clydebank (“the respondent”). The 

Tribunal found the respondent guilty 

of professional misconduct singly 

and in cumulo in respect of his failure 

to reply to correspondence from the 

Society; his failure to obtemper 

statutory notices issued by the 

Society; his failure to keep the books 

and records of his practice written up 

as required by Solicitors (Scotland) 

Accounts etc Rules 2001; his allowing 

his client account to operate in deficit; 

his failure to invest clients’ funds as 

required by rule 11 of the said Rules; 

his failure to lodge an accounts 

certificate timeously in accordance 

with rule 14 of the said Rules; his 

failure to comply with the Money 

Laundering Regulations in terms of 

rule 24; his failure to designate 

clients’ cheques with the client 

name on the payee line in terms of 

rule 6 of the said Rules; his failure to 

record deeds timeously; and his 

failure to obtain written authority for 

inter-client transfers in terms of rule 6 

fyi 

For findings on cases 

decided since 1995 

visit the Tribunal’s 

website at 

www.ssdt.org.uk 

of the said Rules. 

The Tribunal censured the 

respondent, fined him in the sum of 

£5,000 and directed in terms of 

s 53(5) of the Solicitors (Scotland) 

Act 1980 that the respondent’s 

practising certificate be subject to a 

condition that the books and records 

of the respondent’s practice be 

inspected by the Council of the 

Society no later than December 2009 

and thereafter at six-monthly intervals 

on six occasions the last of which is to 

take place no later than December 

2012, and that such inspections be at 

the expense of the respondent. 

The Tribunal was concerned about 

the various breaches of the Accounts 

Rules and the fact that four separate 

inspections between February 2007 

and April 2008 had highlighted 

numerous failures. It is imperative 

that members of the profession 

comply with the Accounts Rules in 

order to maintain the highest 

standards of this profession. The 

Accounts Rules are there to protect 

the public and the respondent’s 

numerous breaches of different rules 

were of serious concern. The Tribunal 

however noted that no one had lost 

money or suffered as a result of the 

respondent’s actions. The Tribunal 

was satisfied that the respondent’s 

basic integrity was not in question. 

The Tribunal also considered that a 

solicitor acting on behalf of a client in 

connection with a conveyancing 

transaction is well aware that he has a 

duty to record deeds or have these 

registered within a reasonable time. 

The Tribunal noted the 

respondent’s position as a sole 

practitioner and considered that, in 

the public interest, it would be 

appropriate for the Society to carry 

out additional six-monthly 

inspections of the respondent’s 

books, commencing December 2009, 

to ensure that the progress which had 

been made recently in keeping the 

practice books up to date was 

sustained and to ensure that the 

interests of the firm’s clients were 

protected. 


Professional briefing Web review 

This month, the web review returns to 

members of Faculty and considers the merits 

of some new(ish) advocates’ websites 

Back to the bar 

Black Chambers 

www.blackchambers.co.uk 

Having rebranded from Black Stable 

to Black Chambers, the time was 

probably right to invest in a fancy new 

website. The first thing to say is that I 

really like the new look (rainbow 

colours on a black background). The 

site itself is very clean, very well laid 

out and easy to navigate. 

It is a simple enough proposition, 

taking a “brochure” approach, 

supplemented by a modest news 

section. The site makes use of 

considerably larger photographs of 

its members than other similar sites, 

making Black Chambers particularly 

suitable for good looking counsel. 

The only other point worth 

mentioning is that the CVs of each 

counsel available to download seem 

to be in more detail than you would 

normally expect, which I suppose can 

only be a good thing. 

The website of Black Chambers is a 

latecomer to the field of advocates’ 

websites, but a very strong presence in 

that field already. 

Maurice O’Carroll 

www.mauriceocarroll.co.uk 

Maurice O’Carroll is an advocate and 

member of Terra Firma Chambers 

(www.terrafirmachambers.com). He 

is also the brother of Derek O’Carroll, 

the former author of this web review. 

His website has a fairly “traditional” 

look to it and, like that of Jonathan 

Mitchell QC (see below), has a 

masthead on one of the pages 

featuring a panoramic view of 

Edinburgh. Of the two, Maurice’s 

photo is bigger and better. 

The site is a very good one, and in 

particular the page offering articles 

and downloads is very useful – 

especially if you have an interest in 

planning or property law. 

However, it does upset me to note 

that the pages headed “My Services” 

and “Frequently Asked Questions” 

are completely blank. It is possible 

that Mr O’Carroll has not been asked 

any questions frequently; curiously, 

there is another page, “Areas 


Who writes 

this column? 

The website review 

column is written by 

Iain A Nisbet of Govan 

Law Centre 

e: iain@absolvitor.com 

All of these links 

and hundreds more 

can be found at 

www.absolvitor.com 

Covered”, where he sets out his 

specialisms. 

Finally, the words “Maurice 

O’Carroll advocate and counsel 

Scotland” which appears in a standard 

font at the top of every page (I 

presume for search engine purposes) 

are probably unnecessary and look a 

little bit amateur and/or needy. 

Laurence Kennedy 

www.laurencekennedy.com 

First, let me declare an interest in this 

website as I was involved in its recent 

update and redesign. 

The website has much the same 

content as the old one, but has been 

redesigned and tweaked. It covers 

much of the same ground you would 

expect, including highlights from the 

areas in which Mr Kennedy practises, 

and a very useful section on 

“instructing counsel” which should be 

required reading for anyone instructing 

an advocate for the first time. 

Laurence Kennedy is one of the few 

advocates who “tweets” and there is a 

prominent link to his twitter feed on 

every page (http://twitter.com/ 

advoc_8), where you can keep up to 

date with developments in his 

working and social life. 

Jonathan Mitchell QC 

www.jonathanmitchell.info 

Jonathan was the first at the Scottish 

bar to have his own website, and now 

is the first to have their own proper 

blawg. Strictly speaking, Scott Blair 

(www.scottblairadvocate.blogspot. 

com) was the first, but he only 

managed three posts, back in 2005, 

before giving up altogether, so I’m 

not counting that. 

The blawg is updated fairly 

regularly and has a number of 

followers from across the UK. During 

the recent furore over Abdelbaset Al- 

Megrahi’s release from prison on 

compassionate grounds, the three 

posts which appeared on this site 

were the subject of UK media 

comment, and some spirited debate 

among those who visit his site. 

Beyond the blawg itself, the site 

also carries other pages of information, 

headed “Who”, “What”, “Where”, 

“When” and “How”. The “When” page 

is a Google calendar featuring the Court 

of Session term dates, Murray Stable 

(www.murraystable.com) events and 

some other selected legal events. The 

“How” page allows you to subscribe to 

the news feed, either by email or direct 

to your RSS news reader. 

Also worth a mention is the old 

Jonathan Mitchell website. You’ll find 

the link on the right hand side about 

half the way down the page. As the 

title tag states, “now retired but still 

accessible”, and still worth a 

rummage around. 

All of the content on this website 

can be reused under the terms of a 

Creative Commons Attribution-Share 

Alike 2.5 UK: Scotland Licence 

(creativecommons.org/licenses/bysa/2.5/scotland/) 

which, given that a 

certain Mitchell QC drafted the 

licence, seems only right and fitting. 

Alan Melvin-Farr 

www.alanmelvin-farr.co.uk 

Alan Melvin-Farr is an advocate with 

the Mackinnon Stable. He is also a 

barrister and has set up his own 

chambers in London. This is the 

website of that chambers. The site is 

fairly basic and suffers from a few 

technical glitches. However, it 

certainly looks the part, so a few 

glitches we can forgive. 


Professional briefing Book reviews 

Blackstone’s Employment 

Law Practice: 4th edition 

(Ed) John Bowers 

and others 

PUBLISHER: BLACKSTONE 

ISBN: 0 19 955661 8 

PRICE: £69.95 

A perennial complaint of the hard 

pressed employment practitioner is 

the need to lug around a variety of 

reference books and materials when 

attending hearings. 

For many reasons, not least the 

practitioner’s back, the fourth edition 

of Blackstone’s Employment Law Practice 

will prove a valuable resource to 

anyone, whether legally qualified or 

not, who advises and represents 

clients on employment-related issues. 

In one portable volume the authors 

have produced a practical and clearly 

set out guide to raising and fighting 

claims in the employment tribunals 

and higher courts. 

The book covers almost everything 

one needs to know about practice and 

procedure in the employment 

tribunal and the employment appeal 

tribunal, and ventures into more 

esoteric areas including higher 

(English) court procedures and 

references to the European Court of 

Justice, among others. Of particular 

practical use are the sections dealing 

with compromise agreements and the 

tax treatment of termination 

This text provides both the annotated 

statute and the criminal procedure 

rules. The fact that the text is in its 

eighth edition is testament to the 

payments, including an example style 

compromise agreement with drafting 

notes. Practical guidance is also 

included in relation to the issues that 

frequently arise in tribunal hearings 

in relation to calculation of awards 

and assessment of damages. 

Practitioners will also benefit from 

the appendices which include extracts 

from selected legislation, practice 

directions, codes of practice, 

summaries of the main cases 

frequently referred to in hearings 

and, more unusually, 

financial information 

(for example motoring 

costs guides) that will 

assist in calculating 

loss at hearing. 

While the majority of 

the text is concerned with 

tribunal and other courts’ 

procedures (including remedies 

available), the book also addresses 

the substantive law in the areas most 

likely to arise at tribunal, including 

dismissal, redundancy, 

discrimination, equal pay, unlawful 

deductions and the transfer of 

undertakings. The authors do not 

claim to cover the substantive law in 

great detail, but these sections 

contain a useful summary of the 

main legal and practical issues. 

Tolley’s Employment Law 

Handbook, currently in its 22nd 

edition, takes the opposite 

approach to Blackstone’s, and 

Criminal Procedure (Scotland) Act 1995: 8th edition 

Dr Robert Shiels 

and others 

PUBLISHER: W GREEN 

ISBN: 0 414 01759 7 

PRICE: £82 


scholarly, concise and up-to-date 

annotations undertaken by four 

renowned experts in the field of 

criminal law. 

Editions of annotated statutes are 

generally seen as not being a 

substitute for textbooks on the chosen 

area. While this is equally true in 

criminal procedure, the annotations to 

this statute are so clear and readable 

that they provide an excellent 

grounding for understanding the 

Suggestions 

for future 

books 

The Book Review 

Editor is David J 

Dickson. Books for 

review should be sent 

c/o The Law Society 

of Scotland, 26 

Drumsheugh Gardens, 


is primarily designed as a reference 

book dealing with the substantive 

law, rather than a guide for 

practitioners in the tribunal. 

Tolley’s is stronger on black letter 

law, though in practice, for the upto-date 

legal position, practitioners 

are likely to refer to Harvey on 

Industrial Relations & Employment 

Law, or IDS online. 

Where appropriate, Blackstone’s 

highlights the differences in legislation 

between Scotland and England, 

though less attention is paid to the 

differences in the practice of tribunals 

north and south of the border in 

respect of matters including the use of 

witness statements (rare in Scotland 

but common practice elsewhere), the 

order of closing submissions, and the 

provision of skeleton arguments 

before the EAT (again not normal 

practice in Scotland). 

The law is up to date as at January 

2009. In an area of law that is subject 

to as frequent change as employment 

law, such volumes can quickly become 

out of date. It is promised that the 

book will be updated annually. 

In summary, although the book 

would have been stronger if it had 

cross-referenced the main text with 

the relevant cases summarised in the 

appendices, it is well presented and 

thorough, and will prove a useful aid 

to tribunal practitioners. 

Donald MacKinnon, Law at Work 

statute and its increasing number of 

sections (eight pieces of new 

legislation are taken into account in 

this edition) and their complexity. 

We were all taught that anyone 

appearing in court ought to have with 

them, any statute they intend to refer 

to. This text is an absolute must for 

anyone who practises before the 

criminal courts. 

David J Dickson 


In-house Annual meeting 

“Experience is 

something you 

get a split 

second after it 

would have 

been useful” – 

one of Robert 

Armour’s 

favourite 

quotes 


You are the one to whom everyone will 

turn to keep them out of trouble; but at 

the end of it all you may be the sole 

survivor. A bit oversimplified, but those 

were two of the points to come out of 

Robert Armour’s keynote address to the 

In-house Lawyers Group’s annual 

symposium last month. 

“Crisis management” was his 

theme, and if anyone can speak from 

experience on the subject it is Armour. 

The former general counsel of British 

Energy, the nuclear power generator, 

he arrived in the hot seat through 

takeovers of his previous employers, 

was there in 2002 when the company 

had to be taken over by the 

Government to prevent it collapsing, 

saw it through a re-flotation, and was 

still in post four years later when it in 

turn was bought up, by which time its 

value had trebled. On top of that, of 

course, nuclear power plants, though a 

“huge area for the UK economy” in 

Armour’s words, are not everyone’s 

idea of nice friendly businesses to run. 

“Crises are each different”, he 

commented. “They make life intensely 

interesting; they raise the blood 

pressure; they give you something to 

look back on. You have to plan and 

give shape to your company’s 

response; there is a huge variety of 

different interests and influences; but 

you have only limited influence.” 

For British Energy, the real crisis 

point arose about seven years ago, at 

a time when the power generation 

industry as a whole was in difficulties. 

Electricity prices were as low as a third 

Calling 

the shots 

As corporate general counsel you 

could be the one making the key 

decisions in an insolvency situation, 

according to this year’s ILG 

keynote speaker Robert Armour. 

Peter Nicholson reports 

of present rates – and forecast to 

remain low for a decade! – and the 

company, which had a history of 

underinvestment in its plant, was 

“decried” in the market. 

Sole protection 

Without going into all the messy 

details of how British Energy was 

turned round, some points stand out 

for in-house advisers from Armour’s 

experiences. First of all, you, the board 

and the employees are all in uncharted 

territory – but everyone is going to 

turn to you, the “gatekeeper”, for 

advice to keep them right; and “you 

may be the only person between the 

directors and jail”. 

Keep yourself as an honest broker; 

and be fair and equitable, or it will 

backfire on you. Oh, and while you’re 

at it, they’ll probably expect you to 

manage the business as well. 

You may also, as a lawyer, be the 

only one who thinks and sees things 

differently from the directors: most 

boards know each other and they are 

probably all from the same mould. 

The one rule is, you pay for 

everything. All the fees, that is. You 

will need help from your external 

legal advisers; but you also have to 

control what is spent on them (“or 

you will get real grief”) – no easy 

matter when you have no bargaining 

power and they will probably 

demand to be paid weekly. 

They will become your friends – but 

they also have fees to earn and 

reputations to protect. 

Don’t get yourself into “a 

paralysis of non-risk taking”. It’s 

important to be prudent; hindsight 

will be the test; but don’t be overpessimistic. 

Armour was not helped 

by advice from his external legal 

firm that said “maybe” in the 48 

hours before a key decision on 

refinancing was required. 

When the finger points 

Although an adviser, you may well 

find yourself in the spotlight. Think 

how your photo will look in the 

press. Watch what you say. The press 

will judge you and politicians will 

look for a scapegoat. Don’t expect 

fair treatment. 

You may also find yourself being 

quizzed by the FSA or other investigators, 

and having to answer questions like 

“Didn’t you see it coming?” Hindsight is 

a wonderful thing. 

How prepared were you? 

“Corporate crises overwhelm 

companies.” The old world has gone 

and you meet an entirely new group 

of people. There is a “complete 

underworld” of lawyers and 

accountants who deal with distressed 

companies. They are “much pushier 

and more self assured” than the 

people you are used to dealing with. 

But in Armour’s case they didn’t 

understand how a Governmentsponsored 

restructuring worked. 

Your board will probably go, but 

you can’t afford to be sentimental. 

Your duty now is to the creditors, and 

also to the business. 


Twists and turns 

Be imaginative; and be prepared for 

unexpected turns of events. As the 

energy market changed while his 

company was undergoing 

restructuring, Armour found some 

parties to agreements reached seeking 

to renegotiate them when they 

thought they were going to be 

disadvantaged, while others of course 

were equally keen to see them carried 

through. He even faced a general 

meeting when shareholders who had 

lodged a motion then argued against 

it being passed. At one point, to 

counter a group who were buying up 

shares in order to “derail” a meeting, 

he went to court in New York in order 

to have the company delisted – a 

tactic that has since been outlawed. 

Keep a focus on getting through. If 

you have a deal in your hand, take it. 

“There might be a better one round 

the corner, but the chances of landing 

the fish are remote.” Whichever route 

you take will have drawbacks and 

pitfalls. The board will be looking to 

you to keep the right balancing act 

and to keep them out of jail. 

They may also rely on you to read 

and advise on documents even if 

they are the ones who have to sign 

them. Summarise everything for 

them, and keep them informed 

about what you are doing. 

And yes, there is light at the end of 

the tunnel, even if it is a very different 

company that emerges. You may end 

up as the sole survivor; but the 

company “needs a history, a 

connection with the past, and to avoid 

making the same mistakes again”. 

You may think life will be 

extremely dull once it’s all over; but 

strangely, new challenges are just as 

likely to come your way! Now British 

Energy faces a whole new world of 

climate change, insecurity of energy 

supply, and (UK) Government policy 

once again for investing in nuclear 

power. Compare that to 2002, when 

it was seen as a company just 

caretaking its way to the end of its life. 

“If you do well,” Armour 

concluded, “you get a huge amount 

of satisfaction that you have probably 

played a pivotal role in keeping the 

ship afloat, saving jobs and 

shareholder value, and improving 

prospects for the future.” 

Though no longer in post as general 

counsel, Armour is still working as a 

consultant to EDF, the company that 

ultimately bought British Energy. 

However he is pondering his next 

move and looking to see what 

opportunities will arise. Surely life 

will be just a little quieter? 


L-r: Speaker Gary MacDonald, Jamie Millar, Janet Hood, vice chair Colin Anderson, speaker Rhona Harper, at the Hub 

Sector “rising to 

challenge”: Millar 

The in-house sector, just like its 

counterparts in private practice, is 

rising to the challenges of “the worst 

economic climate in living memory”, 

Jamie Millar, the Law Society of 

Scotland’s Vice President, told the 

meeting. That applied equally to 

those working for banks that had 

gone from being the powerhouses 

of the UK economy to relying on 

state assistance, local authorities 

experiencing major spending cuts, 

and to the wider corporate sector. 

“Many in-house teams”, he 

added, “have helped private practice 

by taking secondments from firms 

who have seen M&A work and 

property work reduce drastically.” 

While every job lost in the 

profession “is felt with regret 

throughout our collegiate 

profession”, there had not been the 

widespread job losses and 

insolvencies which some merchants 

of gloom had predicted. 

Looking to the future, the 

coming legislation to permit 

alternative business structures 

would be a seismic change of even 

greater effect than those that took 

place in the 1980s – the abolition of 

scale fees “and other ills which were 

predicted to bring about the end of 

the legal profession as we knew it”. 

Instead, what had been a 

“comfortable, introverted 

profession” was transformed into 

“the dynamic profession which runs 

large, successful and profitable 

businesses with increasing 

specialism and expertise”. 

Equally, with the present bill, 

“we should ask not what harm it 

can do for the profession, but 

what opportunities it can offer”. 

The Society intended to be a 

regulator and as such would work 

to ensure that solicitors were not 

competitively disadvantaged but 

could compete on a level playing 

field with other providers. 

Millar’s address was followed by the 

Group’s AGM, in which Chairman 

Janet Hood reported on her work as 

Group Convener for the 

Representation Committees under the 

Society’s new structure, particularly 

addressing the plight of the 

graduates, trainees and young lawyers 

currently facing an uncertain future. 

Through networking events with 

chambers of commerce and other 

business leaders they hoped to 

demonstrate the value of always 

having a lawyer on the team. In-house 

lawyers could help by enabling links 

for all openings in their organisations 

to be made available to the Society. 

She also commented on the 

continuing unawareness among 

law students of the existence of 

the in-house sector and the ease 

with which solicitors can move 

between it and private practice. 

“One of our main goals for future 

law fairs is to increase awareness 

of the ILG and its links with the 

Society… We are also looking into 

meeting with the university law 

schools and working at increasing 

our in-house profile among 

students as future career options.” 

The 1980s 

reforms 

transformed a 

“comfortable, 

introverted 

profession” 

into “the 

dynamic 

profession 

which runs 

large, 

successful and 

profitable 

businesses 

with increasing 

specialism and 

expertise” 

fyi 

The Society is networking 

with business to try 

and demonstrate the 

value of always 

having a lawyer 

on the team 


Property Missives 

“One size” is a 

Despite the movement towards standard missives even having united 

conveyancers in Edinburgh and Glasgow, Michael Smith argues that 

they have their limitations and could work against clients’ interests 

“Do not say, ‘Why were the old 

days better than these?’ For it is 

not wise to ask such questions”. 

(Ecclesiastes, 7.10) 

Having been conveying property 

for over 30 years, I am at risk of 

grumpy old conveyancer’s syndrome 

(recognisable to trainees and 

secretaries everywhere). In gentler 

times, I had an article published in the 

Journal, February 1993, 60, criticising 

both the philosophy and the content 

of the early attempts at standard 

missives. Despite a rearguard action 

by many experienced practitioners, 

standard missives seem to be here to 

stay. The latest version, the Combined 

Standard Clauses (“CSC”), unites 

Glasgow and Edinburgh practice, a 

small miracle in itself. 

There are some benefits to standard 

missives, but I worry about specific 

aspects of the CSC, and that the use 

of standard missives generally will 

lead to lazy conveyancing practice, 

resulting in stress to clients and a 

higher incidence of claims under the 

Master Policy. 

This article is not meant to be an 

academic one. Rather its purpose is to 

alert conveyancers to concerns 

expressed widely by practising 

solicitors, and to invite a discussion. 

Hopefully that discussion might lead 

to some changes in the content of 

standard missives, and how they are 

used. The issues are not black and 

white, but rather a question of balance. 

With due respect to those who drafted 

and approved the CSC, and other 

standard missives, I feel that the 

balance is wrong in some areas. 

Certainty v speed 

These are mutually exclusive goals, 

and I would submit that the CSC, 


and other standard missives, have 

exchanged speed of conclusion of 

the bargain, which might be termed 

“uncertain certainty”, for genuine 

certainty. A quickly concluded CSC 

bargain will have numerous 

suspensive clauses. The main ones 

relate to alterations (clause 7), title 

conditions (clause 15), the property 

enquiry certificate (clause 19), and 

the coal report (clause 20). 

Clause 7, relating to alterations, is 

a minefield for the unwary. In these 

days of home reports, the alterations 

noted by the surveyor are clear for all 

to see at an early stage. With the 

longer lead-in time to sales, the 

selling solicitor should be ordering 

up the titles at an early stage, 

clarifying with the seller what 

additional work has been done, and 

checking all available documentation. 

The seller’s solicitor should then 

forward all documentation with his 

qualified acceptance, so both sides 

have full knowledge of any issues. 

In addition to this general 

observation, clause 7 is weak in 

specific areas. As an example, 

clause 7(a)(ii) requires the seller to 

produce “an unqualified… Letter of 

Comfort”. Virtually all letters of 

comfort are qualified to some extent. 

Far better, for certainty, that the letter 

of comfort is available and exhibited. 

At the very least the wording of clause 

7(a)(ii) should refer to a letter of 

comfort “in the standard form of the 

relevant Local Authority at the time of 

granting”. As a minor point, stamped 

building warrant plans are very rare, 

and there are copyright issues with 

local authorities and architects. 

In relation to title conditions, since 

a copy land certificate may be 

obtained immediately from Registers 

Direct, it must surely be preferable to 

exhibit this with a qualified 

acceptance. Such exhibition would 

fyi 

Practice varies among 

CML members as to 

what alternatives to 

NHBC documentation 

are acceptable 

cover not only the issues dealt with 

in clause 15, but the extent of the 

property would be specifically 

referred to, with the purchaser 

obliged to satisfy himself on that 

extent. Acting for a seller, I recently 

had a purchaser attempt to resile on 

the basis of the extent of common 

ground within the property title. I was 

able to point to the qualified 

acceptance, where I had enclosed the 

land certificate, and incorporated a 

provision indicating that acceptance 

included satisfaction on extent. The 

purchaser duly settled. 

Clauses 19 and 20 have similar 

elephant traps. The property and coal 

reports can be exhibited almost at the 

date of settlement, but the purchaser 

then has 10 days to consider them, and 

if there is a problem, the seller then 

has six weeks to rectify the problem. In 

theory, therefore, two months could 

pass following the date of entry with 

both sides unsure of whether there is a 

bargain or not. In a chain situation, 


dodgy fit 

that could be a disaster. Again, in these 

email days, why not exhibit the reports 

with the qualified acceptance? An 

additional benefit is that early 

knowledge of problems will allow 

tidy-up work to be done long before 

an offer is even received. 

Conclusion: a bargain with few, if 

any, suspensive conditions, taking 

slightly longer to conclude, is far 

preferable to a fast, standard missive, 

bargain, with loose time limits and 

numerous “outs” for a reluctant 

purchaser. What is the rush? 

Purchasers’ solicitors are taking 

longer and longer to conclude a 

bargain anyway. 

Style v substance 

At seminars on the CSC, their 

wonders were extolled. I think we 

have all bought good “stuff” which 

lies, dust-sprinkled, in the garage, 

because we do not have the expertise 

to use it. Any missive is only as good 

as the person using it. The conclusion 

of truly mutually-agreed missives is 

not a question of having the “best” 

missive (although that helps), but 

being able to understand the various 

clauses, what they can do, and what 

they can’t do. Classically, the purpose 

of a good offer is to extract 

information from the seller. 

The CSC also do not avoid the 

need for the conveyancer to go 

through the terms of the bargain in 

detail with the client, explaining as 

required. I have heard it stated that all 

we need to do is send the client, or 

refer them to, a copy of the CSC, and 

possibly the client guide to the CSC. 

If we ask the client to come back to us 

with any questions, and they don’t, 

then “we are in the clear”. 

In addition to being very 

dubious law, I think this is asking for 

misunderstanding and trouble. There 

is no substitute for a knowledgeable, 

experienced conveyancer going over 

missives in detail with a client. In that 

exchange of information, reflected in 

the substance of the subsequent formal 

letter, a conveyancer earns his fee. 

I see a drift towards missives being 

concluded by less well qualified staff, 

part of the general process of making 


The CSC also 

do not avoid 

the need 

for the 

conveyancer 

to go through 

the terms of 

the bargain in 

detail with 

the client, 

explaining 

as required 

law a “commodity”, to be packaged 

up and sold to the lowest bidder. We 

do our profession a huge disservice by 

accepting this drift. It may be a valid 

response to competition and lower 

profits, but then the profession will 

polarise into volume and niche 

practitioners. How will the Society 

equitably regulate those respective 

interests? Should my niche practice 

continue to share the professional 

indemnity risk of the volume 

conveyancer, as happens now? 

General points are always clearer 

when specific examples are given. 

So, to give a specific example of style 

versus substance, I refer to clause 14 

of the CSC, “New Home Warranty 

Schemes”. This looks good on the 

surface, and flexible. It refers to the 

provision of NHBC documentation, 

“or such equivalent new home 

warranty documentation as provided 

by any alternative warranty provider 

as approved by and acceptable to the 

Council of Mortgage Lenders”. The 

problem comes when one reads the 

actual provisions of the CML 

Handbook in relation to such 

alternative warranties. The handbook 

contains the different requirements of 

the various lenders. Some lenders will 

approve some alternative warranty 

providers, but not others. Some 

providers are acceptable to lenders if 

their warranty is “unconditional”, but 

not otherwise. It is not a major point, 

but one day a purchaser’s lender will 

not accept an alternative warranty, 

when it may be acceptable to another 

lender. Quid iuris? 

Conclusion: unless the terms of 

standard missives are fully understood 

and intelligently applied to the 

particular circumstances of client and 

property, the risk is that more errors will 

arise. This will result in a higher claims 

incidence, and a general lowering of 

standards in the profession. 

Clients’ interests 

v solicitors’ interests 

There is a tension in conveyancing 

between the adversarial and the 

consensual, and there always will be. 

The philosophy underpinning 

standard missives is that of the 

reasonable selling solicitor and the 

reasonable purchasing solicitor, and 

the bargain they might come to over 

tea and crumpets. The problem is 

that our clients may not want us to 

be reasonable. 

Our clients may not be reasonable 

people. They may have a questionable 

title, may quietly have removed a wall, 

or may have been fighting with their 

neighbours for years. If we all use the 

same missives, any departure from the 

norm will be obvious. Of course we all 

have professional obligations to one 

another, but these are limited, and our 

prime obligation is to act in the best 

interests of our clients. By advocating a 

standard form of missives, are we 

potentially putting our own interests 

above those of our clients? 

I think we also have to be clear 

whether we are members of a 

profession, or just in business to 

maximise our profit levels. Frequently, 

at seminars, I hear clients spoken of as 

if they are the enemy. We are to put 

our defences in first, crafting our fivepage 

terms of engagement letters to 

reduce risk practically to zero by 

putting our clients on notice of their 

responsibilities (high) and ours 

(minimal). 

Of course there are valid reasons for 

making mutual responsibilities clear. 

However, in my opinion, standard 

missives are, like terms of engagement 

letters, seen as part of our defence, 

rather than part of our service to our 

clients. The argument is this: if we are 

all using the same missive, we can’t be 

negligent. So the avoidance of 

negligence becomes the prime 

concern, along with ease of conclusion 

of bargains. We gradually slide from 

being professionals to businessmen. 

Magic words 

Buying and selling property cannot 

be reduced to a formula. Standard 

missives have the potential for 

making us believe there is such a 

formula, and by using that formula 

(“magic words”), we somehow do the 

work without effort and intelligence. 

Without care, we will devalue our 

professional expertise, and fail our 

clients. I am gratified to see many 

independently-minded solicitors still 

using their own styles of offer. Some 

of the offers are 52 clauses long, and 

those solicitors ought to be charged a 

fee by the selling solicitor for the extra 

reading involved. Some of the offers 

have been distilled to 13 clauses, and 

are the most dangerous. 

Michael Smith is principal of Mike 

Smith & Co, Solicitors, Lenzie 


Property News 

Society advises 

on Park decision 

The Conveyancing Committee 

has considered the implications 

of the decision in Thomas Park, 

Petitioner [2009] CSOH 122 for 

the current practice of relying on 

the terms of missives sent initially 

in electronic form before the 

arrival of the originals. This 

decision reinforced the legal 

position that delivery is required 

before a missive is binding. 

The committee reaffirmed the 

Society’s existing guidance on 

electronic communications. There is 

a duty on a solicitor to follow up a 

fax or email (unless the email 

contains a digital signature creating 

a binding contract) of a contractual 

document with the original as soon 

as possible. If the solicitor is 

instructed by the client not to send 

the hard copy, that fact must be 

communicated to the other solicitor 

immediately and the solicitor must 

withdraw from acting if the client 

cannot be persuaded to withdraw 

such instructions. 

Furthermore, if a solicitor is not 

sure whether a contractual 

document can be sent, a fax or 

email should not be sent of it. 

The committee agreed that in the 

light of existing practice it would 

be in the interests of the 

profession for the law to be 

changed as soon as possible to 

enable electronic missives. 


The new year typically heralds several 

changes in a variety of business areas. 

One such area to witness change is 

the conveyancing framework and 

instructions issued by lenders to 

solicitors and licensed conveyancers 

acting for them in property sales. 

The Building Societies Association 

(BSA) will be introducing a new set of 

mortgage instructions on 1 January 

2010. These instructions aim to ensure 

all BSA members benefit from a 

complete standard set of conveyancing 

instructions, which they may not 

otherwise have. It prevents the need for 

individual lenders introducing 

separate instructions for themselves. 

Scotland, as you would expect, has its 

own set of instructions. There are also 

versions for lending taking place in 

England & Wales, Northern Ireland, and 

the Isle of Man. Each version reflects 

local lending issues and property law in 

each of these jurisdictions. 

The BSA package will provide 

common instructions for all users, as 

Registers of Scotland 

Turnaround times as at 21 November 2009 

The Keeper’s turnaround targets for 2009-2010, endorsed by Scottish Ministers, are set to drive 

continuous improvement in RoS’s performance. This year the targets again set specific timeframes 

rather than relying on averaging. The targets and performance are as follows: 

Where it is in the Keeper’s power and is legally appropriate, to complete the recording and registration of: 

Target: 80% of standard first registration applications 

within 70 working days. 

8,340 received since 1 April 2009 

4,818 despatched of which 4,497 (93.3%) within 

70 working days 

321 (6.7%) despatched in more than 70 working days 

3,522 (42.2%) received since 1 April are in process 

BSA brings in 

standard instructions 

The Building Societies Association is introducing 

a standard set of mortgage instructions, intended to 

perform for members the same function as the CML 

Handbook, as Amir Ghani explains 

The lender, 

whether a 

building society 

or not, will 

clearly set out in 

their initial 

contact with the 

relevant 

practitioners 

the basis that 

they are being 

instructed upon 

Target: 80% of dealings with whole within 30 working 

days, with no dealing taking longer than 100 working days. 




16,386 (19.7%) despatched within 31 to 100 working days 

10,716 (11.4%) are in process 

0 despatched in more than 100 working days 

well as enabling individual lenders to 

set out their specific requirements (SRs) 

to reflect their lending practice that 

conveyancers will need to comply with. 

The instructions are being introduced 

on a voluntary basis and it is for 

individual building societies to 

determine, in line with other business 

decisions, whether they choose to 

adopt the BSA instructions. Many 

building societies have chosen to do so 

from January, though others may opt to 

use their own or alternative instructions. 

More confusion? 

The decision to introduce another set of 

conveyancing instructions will meet 

Target: 80% of sasine writs within 20 working days, 

with no writ taking longer than 40 working days. 




3,954 (12.0%) despatched within 21 to 40 working days 

3,681 (10.0%) are in process 

0 despatched in more than 40 days 


some criticism from solicitors and 

conveyancers as unnecessary and a 

cause of confusion among practitioners. 

The BSA understands the concerns 

practitioners may have; however, in the 

development of the new instructions it 

has endeavoured to ensure that there is 

minimal disruption. 

First, there should in practice be little 

confusion as to which set of instructions 

should be followed. The lender, whether 

a building society or not, will clearly set 

out in their initial contact with the 

relevant practitioners the basis that they 

are being instructed upon. 

Furthermore, as building societies, 

and their lending subsidiaries, decide 

whether and when they adopt the 

BSA instructions, they should be 

notifying their solicitors and 

conveyancers of the change. Similarly, 

those involved in the conveyancing 

process, particularly those acting for 

building societies, will want to check 

with their lender clients whether they 

will be affected and familarise 

themselves with the BSA instructions. 

Adoption of the BSA Mortgage 

Instructions should not have any 

significant impact as to how 

practitioners do their job. In 

preparing any new standard it is 

essential that building societies, as 

well as the solicitors and licensed 

conveyancers instructed by them, 

should be able to apply the new 

instructions without substantial 

changes to procedures and process. 

The BSA instructions achieve this. 

The BSA has also taken this 

opportunity to make subtle but 

important improvements in the 

instructions. The BSA instructions are 

of the same standard as existing 

conveyancing instructions 

available to lenders. However, a 

benefit of the new set is their 

streamlined approach. 

Though existing instructions used 

by the industry have, on the whole, 

served lenders and conveyancers well, 

over time they have grown and 

developed into a labyrinth to navigate 

through. The BSA instructions are 

simpler, arranged in fewer sections 

and with fewer sub-headings, making 

the instructions more user friendly. 

Individual lender SRs are also more 

clearly set out, making them easier to 

find and understand. The BSA has 

made efforts to ensure that SRs are 

presented in a uniform way and adopt 

common language to help users. 

The BSA has engaged with a wide 

range of relevant stakeholders during 

the development of these instructions. 

The Law Society of Scotland and 

Registers of Scotland have both been in 

dialogue with the BSA as the framework 

was finalised. The Royal Institute of 

Chartered Surveyors has also been 

consulted on issues affecting valuers. 

The instructions will be supported 

by guidance tools, all of which will be 

available online from the BSA website. 

The BSA Mortgage Instructions will 

be available in full on the BSA website 

from 1 January. Further information on 

the instructions is available from the 

BSA at www.bsa.org.uk/policy/ 

policyissues/mortgages/bsa_mortgage_ 

instructions . 

Amir Ghani is policy adviser, 

Mortgage Policy Team at the Building 

Societies Association 

Central gets its own SPC 

The first new solicitors’ property 

centre to be opened in Scotland 

since 1994 has been set up by the 

Glasgow Solicitors Property Centre 

(GSPC) and a group of leading 

solicitor estate agents in central 

Scotland. 

Central Solicitors Property Centre 

(CSPC) will advertise homes for sale 

across Scotland’s central belt, with a 

network of participating firms with 

offices in every major town including 

Alloa, Bathgate, Bo’ness, Denny, 

Grangemouth, Falkirk, Linlithgow 

and Livingston. 

Until now the area has been 


Already over 

400 properties 

are for sale on 

www.central 

spc.co.uk. 

A property 

newspaper 

will follow in 

January, linked 

to the GSPC 

property paper 

fyi 

The BSA Mortgage 

Instructions will be 

available in full on the 

BSA website 

www.bsa.org.uk 

from 1 January 

served by the Edinburgh or Glasgow 

solicitors’ property centres, which 

post properties for sale to each 

other’s sites, but the new centre will 

provide a focus on the districts 

between the two cities. 

Already over 400 properties are 

for sale on www.centralspc.co.uk. A 

property newspaper will follow in 

January, linked to the GSPC property 

paper. 

GSPC chief executive Bill Scouller 

predicted that CSPC would quickly 

become the established market 

leader in the central belt: “CSPC 

member firms already sell more 

Environmental 

reports: 

suggested 

terms 

The Professional Practice and 

Conveyancing Committees have 

considered whether solicitors are 

under any duty to advise clients 

for whom they are acting in a 

purchase of residential property, in 

relation to environmental matters, 

and specifically as to whether an 

environmental report should be 

obtained. The committees’ view is 

that conveyancing practitioners 

are not qualified to give advice in 

this connection and that they 

should accordingly include a 

clause in their standard terms of 

business indicating that 

environmental matters do not 

form part of their remit. 

RBS changes 

delivery rules 

With effect from 22 June 2009, the Royal 

Bank of Scotland Group has changed its 

title deeds delivery requirements for new 

residential mortgages granted by its RBS, 

Nat West & First Active brands. For most 

cases, title deeds delivery is no longer 

necessary. Full details of the new 

requirements can be found in Part 2 

(section 14.2) of the Lenders’ Handbook 

on the CML website. 

property between them in the 

central belt than any of their 

competitors. By co-operating to 

advertise all of those properties in 

one location, they create an 

invaluable resource for both buyers 

and sellers. As CSPC becomes an 

essential source of information for 

buyers on homes for sale, it will also 

become an essential marketing tool 

for sellers.” 

Founder members of the CSPC are 

Caesar & Howie, Drummond Miller, 

KW Law, Liddle & Anderson, RGM 

Solicitors and Estate Agents and 

Russel & Aitken. 


Property Climate change 

As the Copenhagen summit attempts to tackle climate 

change, Euan Sinclair questions the ability of one provision 

in the new Scottish Act to make much impact 

A new burden is born 

Nestling within the Climate Change 

(Scotland) Act 2009 is a provision 

that may have implications for any 

solicitor who is dealing with 

property, primarily for or with the 

Government or local authorities. 

When s 68 of the 2009 Act comes into 

force, it will amend the Title 

Conditions (Scotland) Act 2003 to 

insert a new s 46A, thus creating the 

first new personal real burden since 

land tenure reform came into effect 

on the appointed day. 

The new burden is to be called a 

“climate change burden” and its 

express purpose will be to reduce 

greenhouse gas emissions. The terms 

of the burden itself, which will be in 

favour of a public body or trust, or 

the Scottish Ministers, may only 

consist of an obligation for the 

burdened property to meet specified 

mitigation or adaptation standards in 

the event of it being developed. 

Meshing with the law 

As you might expect, the normal 

rules for drafting real burdens will 

still apply. It will be interesting to see 

how mitigation or adaptation 

standards can be enforced without, 

for example, falling foul of the “four 

corners” rule. The details for the 

measurement and quantification of 

such standards are usually to be 

found in extraneous legislation, such 

as the Energy Performance of 

Buildings (Scotland) Regulations. 

Although specification of an EPC or 

BREEAM rating is sufficient for 

contractual purposes, it is unlikely to 

translate well into a real burden. It is 

possible – it will probably just 

require a long schedule. 

Given that an obligation to 

mitigate or adapt beyond any 

planning requirement might have a 

serious negative impact on value, 

local authorities will be mindful of 

their duty in terms of s 74 of the Local 

Government (Scotland) Act 1973 to 

obtain the best value for property 

disposals, and therefore they may 


think again before deploying this 

burden voluntarily when they dispose 

of property. 

But which public bodies? 

The section as passed in fact falls a 

good distance short of Sarah Boyack 

MSP’s original amendment, which 

provided that the climate change 

burden would benefit a person or 

body with functions of a public 

nature. It was decided at committee 

stage that this admirable piece of 

draftsmanship should be “reworked” 

by the civil servants. Did the 

parliamentary draftsmen instead 

substitute the definition of “public 

body”, meaning a Scottish public 

authority within the meaning of the 

Freedom of Information (Scotland) 

Act 2002 as is separately provided in 

s 44 of the 2009 Act, so as to cover the 

whole Scottish public sector? Did 

they in fact try to improve it to 

include reference to UK public bodies 

as defined in the Freedom of 

Information (Scotland) Act 2000? 

Er, no. And here the story takes an 

unexpectedly quixotic turn. Despite 

It may well 

have been in 

the civil 

servants’ 

minds that 

most climate 

change 

mitigation and 

adaptation 

standards will 

be enforced by 

means of 

planning 

conditions 

having world-leading climate change 

targets to meet, the civil servants for 

some reason decided that in 

reworking the section, the definition 

of a “public body” would apply (in 

addition to the Scottish Ministers and 

local authorities) to… conservation 

bodies. Hooray. As a result, the St 

Vincent Crescent Preservation Trust 

can impose a climate change burden 

on its property sold for development, 

but not Scottish Water, SEPA, Scottish 

Enterprise, HIE etc. So can Sir Henry 

Wade’s Pilmuir Trust, but not the 

Ministry of Defence, the Coal 

Authority or a health board and so on. 

Nor is it open to an individual or a 

company to impose a climate change 

burden as a personal real burden. 

Other means? 

It may well have been in the civil 

servants’ minds that most climate 

change mitigation and adaptation 

standards will be enforced by means 

of planning conditions. If a real 

burden is required then planning 

authorities can impose planning 

agreements. If the Parliament is as 

serious as it states it is in relation to 

leading the global efforts to tackle 

climate change, it could have adopted 

this useful measure into the public 

sector. Although adaptation or 

mitigation standards above what the 

rest of the market has to endure 

would inevitably impact on the 

bottom line of the Government’s 

capital receipts, it is a voluntary 

measure, and the Government could 

have been an exemplar to all of us to 

invest in energy efficiency. The recast 

of the Energy Performance of 

Buildings Directive is likely to require 

the (whole) public sector to take a 

lead in setting the standards. 

It seems an opportunity to lead has 

been lost. It may therefore be some 

time before this new type of burden is 

deployed in practice – if at all. 

Euan Sinclair is a professional support 

lawyer at Burness LLP 


Sidelines Manus Straw 

Manus Straw used to find himself in a spin over rotating departments 

How I learned 

to love the law 

I imagine back in the day the typical 

trainee was like Bob Cratchit, 

hunched over a single candle, chained 

(mostly metaphorically) to a clearly 

delineated set of tasks, and 

accustomed to getting the book 

hurled at him for misplacing that 

apostrophe on page 56. Now, of 

course, things are completely 

different. It’s a Blackberry that gets 

hurled, not a book. 

And the fun starts over again every 

time you change departments. As a 

trainee I saw myself as a legal globetrotter, 

drawing gasps of admiration 

as I shot through loopholes from any 

angle. This dazzling pretence would 

persist until an associate surveyed my 

first piece of work, whereupon they 

would promptly conclude I was less 

globe-trotter, more Delboy-Trotter. I 

soon learned to make sure my work 

wasn’t checked so carefully – by 

taking it to the nearest partner. I’m 

not saying the partners were lazy, but 

they had a lot on their plates (witness 

the length of their lunches). 

Changing departments was a 

terrific pain and was effectively like 

starting a new job each time. You had 

to constantly re-earn goodwill, learn 

each partner’s idiosyncrasies and 

work out all the weird politics: “Of 

course we haven’t been robbed – the 

partner’s room always looks that 

way”; “Don’t ever try to speak to that 

associate before 11am”; “Never 

mention weddings to our paralegal 

or she will cry”. 

At the end of the stretch each trainee 

had to give their successor a note of 

what had been happening. These 

notes were usually more in keeping 

with the progress of their files as the 

trainee would have had it, rather than 

any rational reflection of what had 

actually occurred. The one rule was 

that it was good behaviour not to drop 


anybody else in it for past errors. 

Nevertheless one of these notes 

still got me into hot water with a 

particularly serious trainee. We had 

never hit it off, and this was 

exacerbated by the fact that I freely 

admitted I thought she was great 

looking – if perhaps a tad athletic. I 

would regale staff with tales of my 

botched attempts to woo the “Sturdy 

Stunner”, and cheer up secretaries 

that the Stunner had just bawled out 

during one of her frequent tantrums, 

by telling them that it was just the 

side effects of her steroids, or that she 

only kept all those files in her room 

so that she could use them as weights. 

I have no doubt that this hilarity 

got reported back to Sturdy, and 

when she barged into my new 

department, waving my note of work 

in my face, I feared for my life. (Even 

if we were finally getting up close and 

personal.) It turned out that she had 

just totally misread a sentence and 

jumped to conclusions. She barged 

back out and sent a terse email which 

was just shy of a proper apology. (I’m 

pretty sure that a while later the firm 

ended up using Sturdy on lots of 

advertising material, only for her to 

Some 

departments 

certainly had 

horror 

reputations. 

Worst of all was 

“Department 

Death”, neatly 

named after 

both the nature 

of the work and 

the nature of 

the staff 

leave the next month. Whoops!) 

Department rotation also left 

trainees waiting nervously to hear 

which seat they were getting next. (I 

never paid too much heed to rumours 

of bad seats. I reckoned that if a seat 

was that bad, I would just sneak into 

another room after 5pm and change 

it.) Some departments certainly had 

horror reputations. Worst of all was 

“Department Death”, neatly named 

after both the nature of the work and 

the nature of the staff. 

Once I took the opportunity to leak 

a draft rota, with destinations such as 

“hell in a hand cart”, “the job centre”, 

and so on. You can imagine my 

scepticism when an apparently 

genuine draft was circulated a week 

later. Its credibility was admittedly 

boosted by its having been found on 

the printer of the partner who had 

once driven away with the keys to the 

office safe still on his car roof. But I 

still wasn’t sure it could be relied on. 

For a start it was titled “Version 1”. 

Like “World War 1”, I couldn’t help 

thinking that there might be more to 

come. It also set out that the trainee 

with a family connection to the 

managing partner and the trainee 

who wore the plunging green jumper 

on Dress Down Friday were both 

going to Department Death. There 

was no way that was going to happen. 

I was right. By fair means or foul, the 

official rota released a week later gave 

them the plum jobs, while remaining 

the same for most of the rest of us. 

Reports that “World War 1” and 

“World War 2” are to be renamed 

“those wee scuffles before it all kicked 

off over the altered rota at Manus 

Straw’s firm” are unconfirmed at the 

time of writing… 

Manus Straw is the pen name of a 

practising solicitor 


Sidelines Members abroad 

Working the world 

Going off to Pakistan to do volunteer work turned out to be 

a stepping stone to partnership in a mid-tier commercial 

firm in Sydney for Archie Smith 

What has been your career to date 

and how did you come to be 

working where you are? 

I did my traineeship with a long 

established Glasgow firm and got 

exposure to a mix of civil, criminal, 

property and estate work. After my 

traineeship I decided to stay at the 

same firm, becoming a partner after 

only a couple of years. 

While working I went back to 

university and studied for an MBA part 

time. It broadened my horizons. After I 

graduated, my wife and I decided to 

apply to do volunteer work. We got a 

joint posting with VSO in Pakistan. At 

the time it seemed like the next logical 

step, though in retrospect it was a huge 

leap. I resigned as a partner and a few 

months later was working as a 

volunteer with an NGO in rural 

Pakistan, helping it to establish local 

councils and assisting farmers with 

marketing, community building and 

micro-credit. Standing in fields 

discussing marketing, or making 

presentations to Government ministers 

on establishing local councils was a 

world away from practising law. 

When the project ended, we headed 

for Australia, and though I had initially 

intended not to re-enter the law, the 

various jobs offered were all in law. 

My first position was with a US 

company as one of their in-house 

counsel covering the Asia-Pacific region. 

It was a huge learning curve, dealing 

with legal issues from New Zealand to 

India. While working in-house I also 

requalified in Australia and obtained 

my practising certificate here. 

I missed the variety of clients, so 

went back into private practice, 

focusing on general commercial and 

commercial property law. Yet again it 


was a huge learning curve – property 

law in Australia compared to Scotland 

is “the same but different”. While 

clients are trying to achieve similar 

things, the way it is done, the 

procedure and terms can be vastly 

different. The firm I worked for got 

used to my idiosyncratic language, 

such as inhibitions (caveats in 

Australia) or dispositions (transfers). 

I’ve now worked for a couple of firms 

and in some ways feel more attuned 

to Australian law than Scots law; I 

think it would be another learning 

curve to practise in Scotland again! 

I became a partner in the property 

and banking division of my current 

firm a couple of years ago, dealing 

mainly in commercial property, joint 

ventures and construction contracts. 

In many ways my career has come full 

circle, with some interesting 

diversions along the way. 

Do you see yourself staying there 

long term? 

Definitely – we are well settled here 

and are Australian citizens. 

What do you like most about living 

and working where you are? 

The weather plays a big part. It is 

much more of an outdoor lifestyle 

here and a good place to bring up 

kids. Sydney has some great local 

beaches. We probably visit the beach 

at least once a week, summer or 

winter. Sydney is a vibrant city and 

there’s always something happening. 

As for work, Australians have a 

positive attitude and are usually 

prepared to give people “a fair go”. 

Are there any downsides? 

Australia is a long way away from most 

The firm I 

worked for got 

used to my 

idiosyncratic 

language, such 

as inhibitions 

(caveats in 

Australia) or 

dispositions 

(transfers) 

Both pictures: the view from the 

harbour ferry on the journey to work 

places – no more short trips to 

Europe! I also miss a shared history 

with friends. My story here started nine 

years ago, so it’s difficult for friends 

here to relate to things that happened 

before then. However when I catch the 

ferry to work, the sun shines and I pass 

the Harbour Bridge and Opera House, 

the upside outweighs the downside. 

What is the value of retaining your 

Law Society of Scotland 

membership? 

A UK qualification is well 

regarded here and being dual 

qualified can help. Being Scottish 

rather than English qualified adds a 

bit of uniqueness and is often a 

talking point. 

Do you miss Scotland? 

I miss long-standing friends and hill 

walking in the highlands. Somehow 

bush bashing in the Australian bush 

isn’t the same when you have to watch 

out for snakes rather than sheep! 

What would be your advice to 

anyone thinking of making a 

similar move? 

Go for it! Arrive with an open mind 

believing that it will work. It’s always 

better to experience something than 

to wonder if things could have been 

different! 


From the Journal archives 

50 years ago 

From “Corroboration by 

Averment?”, December 1959: “In 

the present chaotic state of the 

law of evidence it is not 

unknown for a party to attempt 

to eke out the insufficiency of 

his evidence by reference to the 

pleadings of his opponent… In 

the recent case of Wilson… 1959 

S.L.T. (Notes) 59, the Second 


Division impliedly disapproved 

of this tendency, while Lord 

Strachan was explicitly in favour 

of the technical view that only 

averments which were 

specifically and formally 

admitted should be regarded as 

being equivalent to proof.” 

25 years ago 

From “From the Editor”, December 

Sidelines Six of the best 

Louise Farquhar revisits what proved a popular subject last time round 

Six of the best... 

Winter wardrobe essentials 

As temperatures fall it’s time to dress up 

against wet days and chilly nights. A few 

well-chosen pieces can update your 

wardrobe and brighten your mood. 

Woolly jumpers, knitted scarves, raincoats 

and cosy hats are all essential attire. 

Here are my ideas: 

Mackintosh 

In 1823 Charles Macintosh (so spelled) 

created the first real waterproof fabric 

when he spread rubber over cotton. From 

this discovery the famous Mackintosh 

raincoat emerged, a piece of clothing that 

has become integral to combating squally 

weather across the world. Today the 

company, based in Cumbernauld, is an 

established global brand that combines 

updated technology with traditional 

techniques, employing only expert 

craftsmen to make the coats. As well as 

the classic design there are now many 

other styles – using vibrant colours to add 

a contemporary feel. The collections are all 

available online as well as in shops. 

www.mackintoshrainwear.com 

OdDesigns, hand knitted scarf 

Janet O’Donnell’s artistic talents are clearly 

visible in her range of hand-knitted scarves. 

She draws on the vibrant and everchanging 

colours in the Scottish landscape 

as well as the rich textures found 

throughout the land. Some of the pieces, 

such as the Cobweb scarves, are light and 

exotic whereas others are made from 

luxurious, thick chenille. Janet exhibits in 

galleries throughout the country and is 

happy to undertake commissions. 

www.oddesigns-scotland.com 

Harris Tweed 

Harris Tweed 

The Harris Tweed jacket has long been an 

essential item for a gentleman’s winter 

wardrobe. The classic jackets, which come 

in four different tweeds, are hand-woven by 

crofters using yarn from the local Stornoway 

mill. The fabric is inspected by the Harris 

Tweed Authority who then award the 

famous Orb trademark. Over 30 employees 

and 100 crofters benefit from the 

production of these garments. The singlebreasted 

design is very flattering and the 

leather buttons add that authentic touch. 

www.harristweedscotland.com 

Recycled by Design 

A good, woolly hat is ideal against the 

Scottish winter, but finding an attractive 

one is not that easy. Recycled by Design 

come to the rescue with their colourful 

handmade hats created from unwanted 

knitted jumpers. Jan Crocker, the founder, 

is based on the remote Orkney island of 

Papa Westray, where recycling is a 

fundamental part of life. Berets, beanies, a 

pill box and even an Orkney Viking design 

make up the range – all incorporating 

beautiful patterns and soft fabric. 

www.recycledbydesign.com 

William Lockie 

A cashmere jumper may seem like an 

unnecessary luxury but, from a practical 

perspective, it will keep you incredibly 

warm and is great for layering with other 

clothes. Pop one on for travelling to work! 

William Lockie have been making soft 

cashmere garments since 1874. They 

claim their Hawick mill has the softest 

water running through it which enhances 

the silky, smooth feel of their fabric. The 

jumpers are sold throughout the world by 

the best retailers. 

www.williamlockie.com 

1984: “Talking of 

Christmas, it seems that in 

this country of ours there is 

precious little peace and 

goodwill about. Ideologies of 

unspeakable intransigence are 

ranged against one another in 

mutual and total disrespect and 

distrust. How then can bitterness 

and rage be avoided when the 

confrontation of rigid dogmas 

Loch Sunart Yarns 

For people with little ones to look after, 

Loch Sunart Yarns make the most sublime 

toddler sheepskin slipper socks to keep 

tiny toes cosy in the inclement weather. 

They are handmade using organically 

tanned sheepskin hides and hand spun 

organic wool from the fleeces of the Soay 

sheep. As well as being functional they 

are also very cute and good for the 

environment. They are available by mail 

order from the company’s base in 

Ardnamurchan. 

www.lochsunart-yarns-buttons.co.uk 

For further ideas see: 

House of Bruar, Perthshire 

www.houseofbruar.com 

Marks and Spencers 

www.marksandspencer.com 

Recycled 

by Design 

becomes translated into the 

physical confrontation of human 

flesh and, all too often, blood?” 

(Who remembers the year of the 

miners’ strike?) 


Sidelines Books for pleasure 

One more legal fiction review, with a special offer to readers 

Holiday reading 

Daisy Chain (Gary Moffat) 

Gary Moffat is a partner with Burness 

and this is his first novel. 

Logan Finch is a lawyer, who 

almost has it all, but his former 

girlfriend Penny Grant is murdered, 

her 11 year old daughter Ellie is 

missing, and newly promoted DC 

Irvine investigates. Cahill, Finch’s best 

client and friend, runs a security 

business. 

The prologue, graphic and 

uncompromising, introduces the 

main characters in this tense novel 

that maintains a fast pace throughout. 

The action takes place over three days. 

The main characters are all driven to 

achieve their individual goals within 

Hearsay 

Lion into Scullions’ den 

Old soccer legends never die, it seems, 

but they occasionally turn up at the 

opening of lawyers’ offices. 

So ex-Celtic captain and Lisbon 

Lion Billy McNeill discovered when 

invited to do the honours at 

Hamilton firm Scullions’ new 

premises. The firm does not lack 

ambition, if photos of the former 

bank premises in Cadzow Street 

during the renovation work are 

Star struck 

Tods Murray are claiming a mention in credits for 

“Scotland’s first animated feature film created 

by husband and wife creative team Tessa and 

Sascha Hartmann”, due out next year. Sir 

Billi, Last Remaining Guardian of the 

Highlands reunites Sir Sean Connery and 

Dame Shirley Bassey (left) for the first time 

since their Bond days, both providing 

vocals, and features (strictly off screen) Tods 

partner Richard Findlay for signing up a 

strong cast, the music deals and generally 

keeping the project this side of the border. 


a limited time frame. The villains are 

more background characters, being 

seen as “foot soldiers”. 

As the story unfolds, so too the 

strengths and weaknesses of the main 

players appear. Ellie is determined not 

to give in without resistance and her 

retention of her father’s photograph 

maintains her faith in that 

relationship. She has no bargaining 

skills and so must seek other ways of 

avoiding harm. Her determination is 

mirrored in DC Irvine, who also has 

limited scope within which she has to 

function, though as an adult she has 

other experience to call on. 

The author’s attention to detail as 

in police procedure is commendable. 

anything to go by – not to mention 

the attendance of around 200 guests 

at the four partner family firm’s 

celebration. 

The Journal has previously featured 

Scullions’ investment in modern 

systems (October 2007, 30), and is 

pleased to see how it is paying off. 

But to finish the way we started, 

you’ve probably heard that old 

lawyers never die, they just… wait 

for it… lose their appeal. 

The whoops! 

corner 

The author’s 

attention to 

detail as in 

police 

procedure is 

commendable 

The ending is swift and leaves open 

the possibilities of Finch, Cahill and 

Irvine coming together in some future 

plot. The title of the book is symbolic 

of the tie-up between Finch and Ellie 

as something that is made simply, is 

easily damaged but can be repaired or 

even replaced. 

This novel is an excellent example 

of its genre and is a very worthwhile 

read. It is recommended. 

George Kennedy 

To order Daisychain at an exclusive price of 

£8.99 (including free p&p), simply call 01235 

827702, or email mailorder@bookpoint.co.uk, 

and quote reference “LAW SOCIETY” 

US attorney Orly Taitz has been fined $20,000 

by a Georgia district court for misconduct by 

“abusing her privilege to practise law”, and 

pursuing a political agenda, through repeated 

attempts to compel discovery of President 

Obama’s birth certificate in order to show that 

he was born outside the USA, and therefore 

not eligible to hold office and not the 

legitimate Commander-in-Chief – all in the 

attempt to prevent army reservist clients being 

deployed to Afghanistan, even pursuing one 

case after the client’s notice was revoked. 


Classified register 

SITUATIONS WANTED 


FOR SALE 

SITUATIONS VACANT 

FOR MORE LEGAL VACANCIES 

Visit us online @ 


How do I reply to 

a box number? 

Send your reply to: Connect 

Communications, Suite 4/2 Great 

Michael House, 14 Links Place, Leith, 

Edinburgh EH6 7EZ. Marking the box 

number on the front of the envelope 

To advertise in the classified 

register, please contact 

Niamh O’Shea 

Telephone: 0131 561 0023 

Fax: 0131 553 1193 

or e-mail: niamh@ 



Classified 


SITUATIONS VACANT 

FARHAD HARIRCHIAN, 

DECEASED – Would any 

solicitor or other person 

holding or having 

knowledge of a Will 

granted by Farad 

Harirchian, latterly 

residing at Flat 12, 38 

Speirs Wharf, Glasgow 

G4 9TG and who died on 

24 October 2009 please 

contact Dykes, Glass & Co., 

Solicitors, 974 Maryhill 

Road, Glasgow. Telephone 

number 0141 945 1917 or 

e-mail maryhilloffice@ 

dykesglass.co.uk 

SPECIALIST SERVICES 

To advertise in 

the classified 

register contact 

Niamh O’Shea 

Telephone: 

0131 561 0023 

JOHN EDWARD 

MCMILLAN 

(DECEASED) – Would 

any Solicitor or other 

person holding a Will 

granted by John Edward 

McMillan formerly of 

4 Rouken Glen Road, 

Thornliebank, Glasgow 

and latterly of 

7 Speirsbridge Road, 

Thornliebank, Glasgow 

please contact Lavery 

Smith and Co Solicitors, 

49 Main Street, 

Thornliebank, Glasgow, 

G46 7SF (Executry 

Department) Tel 0141 

638 2141.uk

Professional briefing - The Journal Online

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?