OF THE LAW SOCIETY OF SCOTLAND - The Journal Online

VOLUME 47 NO 5 MAY 2002
THE
JOURNAL
OF THE LAW SOCIETY OF SCOTLAND
MORTGAGE RIGHTS ACT:
SERVING NOTICE
ON DEBTORS
INTERMEDIATE DIETS:
FLAW IN EMERGENCY
LEGISLATION?
INTERVIEW:
DAVID PRESTON

Contents
e:
19 Opinion
John Sturrock argues that our adversarial tradition should change
to embrace the concept of joint gain.
20 Intermediate Diets
Emergency legislation following the Reynolds case may not
be compelling enough to allow for retrospective effect.
22 Mortgage Rights Act
Confusion surrounds the service of notices to debtors.
28 Craig Connal QC
Scotland’s first solicitor advocate QC speaks about the process
leading to his appointment.
32 Duncan Hamilton
Why the youngest MSP is leaving to pursue a career
in the legal profession.
35 New Summary Cause Rules
Sheriff Alastair Stewart concludes his guide to the new rules
which come into force in June.
38 David Preston
New President has a serious agenda behind his light-hearted
outlook.
47 Videoconferencing
The profession is slowly embracing the benefits of remote meetings.
journal@connectcommunications.co.uk
MAY 2002
VOLUME 47
NO 5
3 May 2002 Volume 47 No 5
5 President’s Report
7 News
14 Letters
16 People
30 Civil Court
40 Website Reviews
41 Information Technology
44 Risk Management
50 Europe
52 Parliament
53 Books
Regulars
60 Notifications
Cover Image:
Brian McDonough
Members
of the Periodical
Publishers Association

President’s report
Journal
Viewpoint
In his final President’s report, Martin McAllister looks
at some of the fundamental issues facing the profession in the future.
Looking forward
It would be easy for me to end my Presidency by
reflecting on an extremely full and interesting
time in office, but I would rather share some
thoughts on the future.We are a forward-looking
profession and, over the past year, my views have
certainly been influenced by my experience.
Tomorrow’s profession and market trends
The Faculty meetings around Scotland, which I
have enjoyed so much, have confirmed my views
that there are some fundamental issues facing the
profession. At a Faculty meeting in a rural area a
few weeks ago the solicitors attending said that
whilst business is relatively healthy, they are having
difficulty attracting trainees to rural practice.
Anecdotally it seems that fewer young solicitors
are entering legal aid practice. We are often told
that the average age of members of the
profession in some non-city areas is rising.
The larger Scottish firms are competing for the
best candidates with English, European and US
firms as well as with other
Martin McAllister
professions. Some large firms are concerned
because they feel they are bearing the burden of
training the solicitors of the future.The common
theme is one of matching future requirements of
the profession with people entering it and it
reflects the high international regard for Scottish
trained solicitors.
The issue is, I believe, much wider. At its most
basic it is about matching the needs of the public
with the numbers and skills of those entering the
profession. The consequences of the current
market dynamics could be far reaching. If people
are not entering the “traditional” legal aid areas of
practice then there will be real future problems
for access to justice. Because of the history of
legal aid remuneration over the last decade it is
understandable why people are not so attracted
to this area of work. Proposed changes to civil
legal aid will improve the situation but is only part
of the answer.
We can argue that we cannot buck the market. It
is understandable that some firms who take
trainees feel that they are bearing costs of
training new solicitors but, again anecdotally, it
seems that those trainees who start in the larger
firms tend to stay within that circle of firms and in
due course become training partners themselves.
In some areas of practice, especially in the larger
firms, the training has become so specialised that
it might be difficult to move to another area of
practice or to general practice.
We need to get hard facts. We need to
know the pattern of trainees’ career
progress. We need to know the
implications for rural areas and
recognise that other professions,
including medicine and dentistry, are
dealing with the same issue. The
Society’s Policy and Planning Group is
considering how best to gather the
information. Because of the potential
implications for access to justice, it is
not only a matter for the Society
but also for the Scottish Executive
and Scottish Legal Aid.
Technology as the Key
There has been much progress on technology
over the last year, particularly on our Private Key
Infrastructure, secure electronic communications
project. There is no doubt that the pace of
change will increase and that we as a profession
must embrace technology or be left behind.
Equally important is that those who interact with
us and who are key components of the justice
system must keep pace with us to ensure that
areas such as the administration of criminal law
and the resolution of civil litigation, particularly in
commercial matters, progress at the same speed.
The Executive, Judiciary, Scottish Courts, Crown
Office, Legal Aid Board, the Society and others
must work together as a team to be efficient and
cost effective. I am confident that this can be
done. There is the goodwill from all the
stakeholders in the justice system and we have
the advantage of Scotland being, in relative terms,
a small jurisdiction and therefore easier to
implement change.
The practice of law as it is carried on now is quite
different from five years ago and will change even
more in the next five years. I am convinced that
practice units will change. With increased
specialisation and the necessity of firms to
provide a full range of services to be competitive,
partners will have to look at areas of practice,
amalgamations or arrangements with other firms
and the provision of advice their clients seek both
in the city and in rural areas. If we embrace these
developments and adapt, then the profession will
remain healthy and will prosper.
My year as President has been fulfilling, exciting,
and the best time that any Scottish solicitor could
have in their professional life. David Preston has
been a friend and a very hard working Vice
President over the past year and I wish him every
success as President.
It is now time to return to Saltcoats and pick up
my life! What I will never forget and will value
most of all is the huge amount of goodwill that
the members of the profession have shown me
as President and for that, I am most grateful.
5 May 2002 Volume 47 No 5

IT Security and the Law Seminar
Over 100 delegates attended the IT Security and the
Law Seminar held at the Stirling Management Centre
last month. Speaking at the seminar and pictured above
are Gordon Brewster (Director of IT at the Society)
who made a presentation on the e-mail encryption and
I, Douglas Russell Mill, Secretary of The Law
Society of Scotland, Returning Officer for the
purposes of the election of members of the
Council of the Society, HEREBY GIVE NOTICE
that the undernoted persons have been duly
elected as members of the Council of the Society
for the following constituencies:
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: Martin McAllister
Vice-President: David Preston
Secretary: Douglas Mill
EDITORIAL OFFICE
Editor
David G. Cameron
Connect Communications,
Studio 2001, Mile End,
Paisley PA1 1JS
t: 0141 561 0300
f: 0141 561 0400
e: journal@connectcommunications.co.uk
w: www.connectcommunications.co.uk
PKI project, Keith Foggon (Director of Sapphire
Technologies) who discussed IT security, Dr Keith
Nicholson (Director of IS, MacRoberts Solicitors), who
presented practical implementations of IT security in a
legal firm, and Ian Pettigrew.
Election of Members of Council 2002
Sheriff Court District of Edinburgh
■ J Neil Cochran, Messrs Dundas & Wilson,
Saltire Court, 20 Castle Terrace, Edinburgh
■ W Ruthven Gemmell, Messrs Murray Beith
Murray, 39 Castle Street, Edinburgh
■ Scott H Miller, Messrs Allan McDougall,
3 Coates Crescent, Edinburgh
■ Duncan L Murray, Messrs Robson McLean, 28
Abercromby Place, Edinburgh
■ George A Way, Beveridge & Kellas, 52 Leith
Walk, Edinburgh
■ Mark R Thorley, Blacklock Thorley, 89
Constitution Street, Edinburgh
Sheriff Court District of Stonehaven,
Peterhead and Banff
■ John A MacKinnon, Brown & McRae,
Anderson House, 9/11 Frithside Street,
Fraserburgh
Sheriff Court District of Dumfries,
Kirkcudbright and Stranraer
■ Peter A H Matthews, A B & A Matthews, Bank
of Scotland Buildings, Newton Stewart
Deputy Editor
Roger Mackenzie
t: 0141 560 3018
e: roger@connectcommunications.co.uk
Review Editor
Alistair Bonnington
e: alistair.bonnington@bbc.co.uk
Design Editor
Gillian Park
t: 0141 560 3020
e: gillian@connectcommunications.co.uk
Journal
News Inside
8 Counselling
Competition
Winners
8 Leaflet Translated
9 PCC Update
9 New Solicitor
Advocates
10 Obituaries
10 Legal Aid Update
11 Natural Water
Boundaries
12 Charter Mark
Winners
12 Small Claims and
Summary Causes
■ Heather R L Gibbings, John Henderson &
Sons, 8 Bank Street, Dumfries
Sheriff Court District of Airdrie
and Lanark
■ Ian S Smart, Ian S Smart & Co, 3 Annan
House,Town Centre, Cumbernauld
Sheriff Court District of Hamilton
■ Oliver Adair, Adair & Bryden,
2 Church Street, Larkhall
Three nominations were received for two vacancies
in the Sheriff Court District of Aberdeen and a
contested election is therefore being held.
Only six nominations for seven vacancies in the
Sheriff Court District of Edinburgh have been
received and one vacancy therefore remains.
Chief Sub-Editor
Eric Wishart
ADVERTISING
Jacquie Burrows
t: 0131 467 0503
e: jacquie@connectcommunications.co.uk
Julie Twaddell
t: 0141 560 3027
f: 0141 561 0400
e: julie@connectcommunications.co.uk
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. © The Law Society of Scotland, 2002 ISSN: 0458-8711
7 May 2002 Volume 47 No 5

Journal
News
Information from
the Registers
turnaround times
The current average turnaround
times in working days from the
Registers of Scotland are
as follows:
Sasine Writs
12 working days
with a maximum of 17 days
for the latest County
Unattached Dealings with Whole*
15 working days
with a maximum of 22 days
for the latest County
* An unattached Dealing with whole
is a Dealing which is not dependent
on the processing of a prior
First Registration,Transfer of Part or
Dealing with Whole for its
completion.
The published Agency turnaround
times for the Land Register is an
attempt to capture the elapsed
time that an application is in the
Keeper’s hands and is capable of
being processed by his staff.The
only period of time not included in
the turnaround time measurement
is that time where a requisition has
been raised with the submitting
agent.Turnaround times are
calculated at the point where the
finished Land Certificate is
despatched to the Agent. For
obvious reasons Saturdays and
Sundays are not included in the
measurement taken.
The turnaround time in the Sasine
Register is purely the elapsed time
(once again without Saturdays and
Sundays) as writs which are
withdrawn during the recording
process are excluded from the
turnaround time calculation.
May 2002 Volume 47 No 5 8
e: journal@connectcommunications.co.uk
Scottish victory in the
International Client Counselling Competition
Two students from the Glasgow Graduate School of
Law have won a remarkable victory in the International
Client Counselling Competition, held this year at Stetson
University in Florida.
Kathleen Carlin and Eddie McAvinchey carried off first
prize against fierce competition from other international
teams in this well-established legal competition.
The competition, which started in America around
1969, focuses upon the practical skills that are required
of students once they enter a law office. In particular it
helps to develop students’ awareness of the counselling
and interview features of legal practice. In America the
competition has been administered by the American Bar
Association, and the majority of American law schools
now take part.
It is estimated that world wide around 750 teams take
part in eliminating rounds to produce their national
representatives.
The team was tutored by Michael Graham of
MacRoberts Solicitors, who is also a part -time lecturer
Leaflets in six languages
The Society has translated its leaflet
“Dissatisfied with your Solicitor” into
six languages.
The translated leaflets are now
available from the Society in Arabic,
Bengali, Chinese, Hindi, Punjabi and
Urdu.
Martin McAllister said: “Helping
people find out about the law, their
rights and what they should expect
A number of requests have been received from
members in private practice asking the Group to open
out their hugely successful series of seminars to non
members.This request was placed on the agenda at the
group’s recent committee meeting and agreement was
readily given.There will be a fee to non group members
from their solicitor are fundamental.
“The Society is working to ensure
that information on the law and
access to a solicitor – as well as
what to do if a client is dissatisfied –
is available to everyone in Scotland.”
The Society has signed up to the
Commission for Racial Equality’s
Leadership Challenge, and is
working to ensure that the Society’s
and senior tutor at the Glasgow Graduate School of
Law and is the Scottish Chairman of the International
Client Counselling Committee. He said: “The
competition was as tough as any I have experienced.
Each year the standard gets better and better as the
problem scenarios become more realistic and complex.
Northern Ireland, Australia and the US traditionally field
outstanding teams. The US, for example, choose their
winners from an internal competition involving over 120
teams. It was a tremendous victory for the Scottish
team. Both Eddie and Kathleen were a credit not only to
their school but to their jurisdiction.”
Eddie and Kathleen are students on the innovative
Glasgow Graduate School of Law (GGSL) Diploma in
Legal Practice.
Eddie McAvinchey said: “Much of what we put into
practice in the competition was learned on the Diploma,
and it’s evidence just how well this course prepares us
as prospective lawyers, on leaving the theory of the
class-room for the practice and rigours of the
profession.”
procedures and systems are
constantly improved to meet the
challenge.
Dharmendra Kanani, Head of the
Commission, said: “Everyone needs
access to quality legal provision.The
CRE welcomes this positive step
towards providing a more inclusive
service.”
In House Lawyers Group’s New Initiative
– Seminars Opened Up to Non Members
International Bar Association 2002 Conference
The International Bar Association (IBA) – the world’s largest
international lawyers organisation – will be holding its annual
conference in Durban, South Africa, in October this year. The
conference will bring together something in the region of 3,000
delegates and 800 speakers to discuss and debate a wide range of
international legal issues, and over the five days of the programme
of £40 (plus vat) for all evening events, but numbers will
be limited to give group members priority. A full
programme for 2002/2003 will be published on the
website at the end of June, but in the meantime details
can be found on UPDATE on page 13 in this month’s
Journal.
there will be 100 working session covering everything from
international cartels to access to justice. For further information
and a copy of the preliminary programme, see the IBA website
(www.ibanet.org/Durban) or contact Carol Nightingale at the
Society (carolnightingale@lawscot.org.uk; tel: 0131 476 8132; fax:
0131 225 4243)

Glasgow Graduate School of Law
and the WS Society have both now
been accredited to provide the core
curriculum of the Professional
Competence Course.
Detailed information about both of
their courses can be found at
www.ggsl.strath.ac.uk/pcc or direct
from either provider.
Paul Maharg, co-director of legal
practice courses at the GGSL, said:
“We’re confident that the trainees
will benefit from this course, in
which legal skills, knowledge and
information and communications
technology are blended to produce
highly innovative and practical
training.
“Both the GGSL and WS Society
advertised for tutors to teach on the
PCC, and the take-up by the
profession has been excellent.”
The GGSL courses will be held in
Glasgow in May, June and
September and the WS Society in
June, September and October in
Edinburgh.
There are 36 hours of core
curriculum modules and trainees
need to complete 18 hours of
elective modules. The elective
modules allow trainees and their
employers to tailor the PCC to their
traineeship and choose subjects
which are directly relevant to the
work they have carried out in the
office.
Core and elective modules may be
completed at different times and
with different providers.
Six solicitors have gained Rights of Audience as solicitor-advocates after a
ceremony at Parliament House, Edinburgh.This brings the total number of
practising solicitor-advocates in Scotland to 134.
Five were granted Rights of Audience in civil cases in the Court of Session,
and one was granted Rights of Audience in criminal cases in the High Court
of Justiciary. Lord Hardie presided over the ceremony.
Solicitor-advocates can appear in the highest courts in Scotland and have
equal Rights of Audience to advocates.
President of the Law Society of Scotland, Martin McAllister, said:
“Solicitor-advocates play an important role in our criminal and civil courts
and I would like to congratulate all the new solicitor-advocates.”
The new solicitor-advocates granted civil Rights of Audience are:
Alisdair Gordon, Penmans, Glasgow
Mark Morton, Dundas & Wilson, Glasgow
Melinda Wallace, Duncan & Wallace, Edinburgh
Peter Paterson,Tods Murray, Edinburgh
Andrew Cubie, Maxwell MacLaurin, Glasgow
New solicitor-advocate granted criminal Rights of Audience:
Alistair Bonnington, BBC Scotland, Glasgow
Several organisations and firms are
working towards accreditation to
offer elective modules, including the
GGSL and WS Society.
Other potential providers include
the University of Aberdeen,
University of Edinburgh and the
Glasgow Bar Association which are
all aiming to provide both core and
elective modules starting later this
year or early next year.
Accreditation to provide the PCC
in-house for their own trainees is
being sought by Dundas & Wilson,
Shepherd & Wedderburn and
McGrigor Donald.
Trainees should attend the PCC
between 6 and 18 months into their
traineeships, however there will be
some flexibility whilst the
Journal
News
Professional Competence Course Update
Six New Solicitor-Advocates
accreditation process is ongoing.
The Society is recommending that
employers meet the costs of
reasonable daily travel to attend the
PCC. A fund is being set up to
provide financial assistance to
trainees who must travel significant
distances to attend the PCC.
Further details will be available soon.
The PCC providers should be
contacted directly about
administrative and enrolment
procedures.
The Education & Training section of
the Society’s website has
information about the new training
programme at www.lawscot.org.uk
or please contact the Society’s Legal
Education Department on
0131 226 7411.
9 May 2002 Volume 47 No 5

Journal
News
Obituaries
LEONARD ELLIOT DICKSON,
CBE, (retired solicitor), Stirling.
On 24th February 2002 Leonard
Elliot Dickson, C.B.E., Stirling,
formerly partner of and latterly
consultant of the firm Dickson,
Haddow & Co, Glasgow.
AGE: 86
ADMITTED: 1947
JOHN BRYCE ADAM,
(retired solicitor), Perth.
On 5th April 2002, John Bryce
Adam, formerly partner to the
firm Kippen, Campbell & Burt, WS,
Perth and latterly sole practitioner,
Perth.
AGE: 76
ADMITTED: 1950
DOUGLAS FINLAY ROSS
GRAHAM,WS, (retired solicitor),
Edinburgh
On 30th March 2002, Douglas
Finlay Ross Graham, WS, formerly
partner of the firm Cuthbertson,
Riddle & Graham, Edinburgh, and
Russel & Aitken, Falkirk, and latterly
consultant to the firm Russel &
Aitken.
AGE: 82
ADMITTED1948
Specialist
Accreditations
The following have been
accredited as specialists in
Trust Law
Robin Fulton,
Turcan Connell, Edinburgh
Eilidh Scobbie,
Burnett and Reid, Aberdeen
Nicholas Barclay,
Thorntons, Dundee
Alexander McDonald,
Thorntons, Dundee
May 2002 Volume 47 No 5 10
e: journal@connectcommunications.co.uk
New Library Signals Shift from Old to New
Technology for The Royal Faculty Of Procurators
The Royal Faculty of Procurators in Glasgow has
relocated its library within Glasgow Sheriff Court and
has taken the opportunity to place an increased
emphasis on the deployment of new technology.
Commenting on the move, Raymond Williamson, Dean
of the Royal Faculty of Procurators and senior partner
of MacRoberts, Solicitors, said, “We are delighted with
the location of our new library and would like to
express our thanks to the Sheriff Principal for making the
space available to us. We have replaced many of the
dusty tomes from our former site with the latest online
Legal Aid Practitioners will have received the recent
guidelines from the Scottish Legal Aid Board on the
complex issue of property recovered or preserved.
While the Board guidelines are clearly of assistance in
considering the issues arising, the Society’s Legal Aid
Committee wish to remind solicitors that the issue of
whether property has been recovered or preserved is
ultimately a matter of law.
information technology as this has become the main
means by which practising lawyers source and retrieve
information.”
Officially opening the new library, Edward F Bowen QC,
Sheriff Principal, said,“I’m very pleased to have been in a
position to make this space available to the library of The
Royal Faculty of Procurators. Its relocation to the Sheriff
Court should help ease the access to the information
required by practising solicitors. Many things have been
launched on the banks of the Clyde, but this is perhaps
the first library!”
Solicitors Willing to Take Referrals in the Areas of Incapacity,
Disability and Mental Health Law
In the January edition of the
Journal, the Society’s Mental
Health and Disability Committee
asked all those solicitors
interested in taking referrals in the
areas of incapacity, disability and
mental health law to complete a
pro forma and return it to the
Society. The Committee is
delighted with the very positive
response which it has received
from the profession and work is
Legal Aid - Property Recovered or Preserved
Incidental Investment Business Certificates
There has been a delay in the issue
of Incidental Investment Business
Certificates to firms licensed for
this work. The delay is due to
ongoing discussions with other
professional bodies and the
Financial Services Authority on a
possible common form of
numbering for firms which are
licensed for incidental investment
ongoing to ensure that the
database to provide this
information to the public is up and
working shortly. Thank you for
taking the time to complete these
forms.
Practitioners who disagree with an interpretation of the
law by the Board in a particular case have a duty to
advise their client as to the position and as to the
remedies available to dispute the Board’s interpretation.
If the client does not wish to pursue any dispute then
that should be recorded on the file and practitioners
might also find it prudent to confirm this in writing to
the client.
business. It is anticipated that these
discussions will be finished over
the course of the next 2 months
with the Certificates issued by the
end of July.

Journal
News
Natural water boundaries and the Land Register
Subjects which have as one of their boundaries a
natural water feature (such as a river, loch or the
sea) present a number of difficulties within the
context of land registration. These difficulties are
discussed in some detail in the Registration of
Title Practice Book (second edition) at paragraph
6.99 et seq. On the one hand, the Keeper has a
duty under the Land Registration (Scotland) Act
1979 to issue registered titles whose boundaries
are guaranteed within the level of accuracy of the
Ordnance Map. On the other hand, where titles
are bounded by a natural water feature, the line
of the title boundary may be open to more than
one interpretation. More importantly, the natural
feature may be susceptible to permanent change
or seasonal fluctuation; this may or may not have
an impact on the title boundary, depending on
whether the change results from alluvio, avulsio
or some other cause.
The Practice Book sets out guidelines for the
Keeper to apply in relation to natural water
boundaries. The guidelines include a series of
options to be adopted by Land Register staff in
individual cases, together with a list of factors
which will be taken into consideration.
Unfortunately, it has become apparent that the
guidelines require the Keeper’s staff to make
assessments which they are not best placed to
make ( e.g. whether a boundary is likely to be
susceptible to alteration and – if so – whether
that alteration is likely to result from alluvio or
from some other cause ).
The guidelines were approved by the Joint
Consultative Committee of the Registers of
Scotland and the Law Society of Scotland, which
had agreed that there would be a need to
monitor and – if necessary – to adapt the policy.
The Joint Consultative Committee has now
reconsidered the policy and has agreed new
guidelines for Land Register staff to follow.These
guidelines are simpler for both the Keeper’s staff
and the legal profession to understand and apply.
The Keeper believes that they represent a
reasonable balance between the assumptions of
property law and the need for accurate and
reliable registered titles.
The new policy has two main strands. Firstly, the
Keeper will map registered titles adjacent to or
including part or all of a natural water feature
(including foreshore) in such a way that the red
edge or tint on the title plan includes the fullest
extent of that feature consistent with the titles.
This is designed to ensure that a search of the
index map will always reveal a registered title
which may include the area searched. Secondly,
indemnity will be excluded in respect of the
implications of movement of the boundary
feature. This is designed to allow the Keeper to
take advantage of the rectification provisions in
the 1979 Act where alteration of a natural water
boundary leads to a change in the legal title
extent, either before or after first registration.This
policy will be applied by Land Register staff in all
applications for first registration or transfer of
part received by the Keeper after 20th May 2002
where one or more of the boundaries is or
includes a natural water feature.
The Keeper will, of course, apply the policy in the
light of the full circumstances of individual cases.
Solicitors who are unsure as to how the new
policy might impact on a prospective application
for registration are therefore invited to contact
the Pre-Registration Enquiries Section of the
Registers of Scotland at Meadowbank House,
153 London Road, Edinburgh, EH8 7AU – DX
555400 Edinburgh 15 – LP 55 Edinburgh 5 –
Direct line 0845 607 0163.
11 May 2002 Volume 47 No 5

Journal
News
Authors Wanted
The Society has a joint books
agreement with the publishers
Butterworths, the express purpose
of which is “to ensure that there
continues to be made available to
the Society’s members and the
legal profession in Scotland a
range of books and publications
on
Scots law and legal practice and
related subjects.”
The Society and Butterworths
would welcome suggested book
topics and authors willing to write
under the joint books programme.
All suggestions should be sent to:
Carole Dalgleish, Commissioning
Editor (Scotland), Butterworths,
4 Hill Street, Edinburgh
EH2 3JZ or DX ED 211
or
e-mail Carole at
caroledalgleish@butterworths.co.uk
Readers’
survey
winners
Beverley Klein of
Lindsays in
Edinburgh is the
first prize
winner
following our
readers’
survey in
March. She wins a
WIN a weekend for
two at St Andrews
Bay Hotel
WIN £100 Oddbins
voucher
At The Journal we greatly value the views of our readers.
We are constantly striving to make your magazine relevant and informative to the needs of the modern practising profession.
In order to achieve this goal we need to continue to listen to our readers; the more we understand what you want,
the better we can meet your requirements.
This survey will provide valuable information on your needs and views.Your feedback in completing
this form would be greatly appreciated.
The information provided in this survey will be treated as confidential by Connect Communications. It will be used solely in
aggregate form for making informed editorial and advertising decisions in relation to the Journal.
Please fill in the form and return it to us in the replied paid envelope by April 19th.
READERS’ SURVEY
How would you like to escape the stresses and strains
of everyday life with a fabulous – FREE – weekend for
two at the splendid St Andrews Bay Hotel on the
majestic Fife coast?
Well, it’s yours to win in our prize able to use the Hotel’s extensive
draw for those who take the time spa facilities.
to complete and return our
A prize of a voucher to Oddbins
Journal questionnaire. Everyone
valued at £100 is also on offer to
who completes a questionnaire
the person whose name is drawn
will automatically be entered
second from the hat.
in the draw.
Please simply complete the
The top prize includes dinner, bed
questionnaire and return it to us
and breakfast at the £50 million
here at the Journal offices in the
hotel and golf resort with its
pre-paid envelope supplied.
breathtaking views overe
St Andrews Bay to the Home We will announce the names of
of Golf.
the winners in the April edition of
the Journal.
The winners will also receive a
complimentary round of golf over Thank you for taking the time to
the new St Andrews bay course – complete the questionnaire and
The Torrance Course – and be
the best of luck in the prize draw.
David Cameron
Editor
READERS’ SURVERY ■ READERS’ SURVERY ■ READERS’ SURVERY ■ READERS’ SURVERY
weekend for two at the
St Andrews Bay Golf Hotel and
Spa. Second prize of £100 worth
of Oddbins vouchers goes to
Ivan Ralph of Blair Cadell, also
in Edinburgh.Thank you to all
who took part.
Correction
The by-line which appeared with
the article on special educational
needs on p 50 of last month’s
Journal incorrectly designated
Dinah Aitken as Children in
Scotland’s solicitor. The
biographical details at the foot
of the article are correct.
May 2002 Volume 47 No 5 12
e: journal@connectcommunications.co.uk
Charter Mark first
Renfrewshire Council is the first
council house sales team in
Scotland to be awarded the
prestigious Charter Mark award
Yacht Club sets sail
Members of the Law Society of Scotland Yacht Club
are participating in the Round Mull Race from June
28th to 30th.
The event will be the club’s inaugural sailing event and
berths should be available on participating yachts.
The race organised by Oban Sailing Club is a
recognising improvement and
excellence in the delivery of public
services.
The team, part of the legal services
section, was presented with the
award by Lord Macdonald in
London.
The Charter Mark process
measures elements of the service
provided against ten criteria,
including being open and providing
full information, consulting and
involving others, using resources
effectively, innovating and improving
and providing user satisfaction.
David Sillars, the Council’s Head of
legal Services, said: “The team have
done exceptionally well to win this
award. They make every effort to
assist a large number of tenants
making the most important
purchase of their lives.”
combination of racing and socialising, starting at
midday in Oban, the legs being Oban to Tobermory,
Tobermory to Bunessan and Bunessan to Oban.
Please contact Sandy Reid if you are interested in
participating. He can be contacted on tel 0141 221
6551, fax 0141 204 0507, e-mail acr@kidstons.co.uk
Small claims and summary causes
The new Rules for both Small
Claims and Summary Causes have
now been published and are
available from The Stationery Office
at a cost of £9.00 and £13.50
respectively. The Rules will come
into force on 10 June and, as can be
seen from Sheriff Stewart’s articles
last month and this month, contain a
number of significant changes. The
fees for Summary Causes will also
change significantly at the same time.
The Judicial Procedure Committee
are holding a series of seminars
through Update on the new Rules
and the new fees, and the first of
these is in Glasgow on 17 June.
These Roadshows will also discuss
the Justice Department’s proposals
to increase the Summary Cause
jurisdiction limit to £5,000, and the
Small Claim limit to £1,500. Bruce
Ritchie, Secretary to the
Committee, encourages Civil Court
practitioners to attend these
Roadshows.
Resumption Practice Note No. 5
The Scottish Land Court have recently issued Resumption Practice Note 5 which deals with the question
of plans being attached to Minutes of Consent and grants of planning permission in resumption
applications under the Crofters (Scotland) Act 1993.
A copy of the Note may be obtained from the offices of the Scottish Land Court, 1 Grosvenor Crescent,
Edinburgh, EH12 5ER, DX ED 259 LP14, Edinburgh 2 (tel 0131 225 3593).
Introduction to EC law
The Academy of European Law, based in Trier in
Germany, is once again organising a summer course on
European law. This is the 10th such course and will run
for a week (1st-5th July). The course aims to give
lawyers in their first practising years the opportunity to
gain an understanding of the basic principles and sources
of Community law as well as such important areas as
competition law, private international law, intellectual
property, environmental, justice and home affairs, and
human rights. In addition, the course offers a trip to the
European Court of Justice in nearby Luxembourg as
part of the curriculum.
For further details on the course or to register, see the
Academy of European law website
(http://www.era.int/www/en/c_978.htm) or contact
Nathalie Dessert at the Academy (ndessert@era.int;
tel: + 49 651 93737 21; fax: + 49 65193737 90).

Journal
Letters
Extra
judicial
settlement
fees
I want to alert readers to the
position of Glasgow City Council
in relation to settlement of
reparation claims. It appears that
unlike every other major local
authority and insurer, Glasgow
Council do not pay extra judicial
settlement fees when settling
claims.They consider that it is a
matter of their discretion and
they will also frequently not alert
solicitors to the fact that this is
their negotiating position when
acknowledging receipt of letters
of claim. In the circumstances
solicitors may wish to consider
whether it is worth negotiating
with this Council or litigating
immediately.
David Sandison,
Lawford Kidd, Edinburgh
May 2002 Volume 47 No 5 14
Write to:
The Editor,The Journal,
Studio 2001, Mile End, Paisley PA1 1JS
f: 0141 561 0400
e: journal@connectcommunications.co.uk
Concerns over PCC
Trainee
solicitors
who began
their training
contracts
within the
last year are
the first trainees in Scotland to
undertake the new Professional
Competence Course. From now
on, it will be obligatory for trainees
to undertake such a course at the
end of their first year.
The course is designed to be an
intensive two week course, which
supplements and supports the
training received by trainees whilst
working for their firms. At the end
of their second year, trainees will
also be required to sit a Test of
Professional Competence, which is
apparently designed to root out
those who are not sufficiently
competent to practise and,
therefore, to confirm that those
who pass have attained an
acceptable level of competency
during their training.
Unfortunately, in recent months,
the Scottish Young Lawyers
Association has learned of the
growing concerns of first year
trainees about these new features
of their training. In particular,
trainees are confused and
concerned about the PCC; its
meaning, practicability and
necessity.
In order to establish the nature and
extent of these concerns, the SYLA
sent out a questionnaire to over
100 first year trainees. The
questionnaire asked 19 wideranging
questions, embracing such
issues as: the level of information
received about the PCC and from
whom it was received, problems
involved in booking a place on a
designated PCC and the perceived
objectives of the PCC.
Of the 66 replies received, more
than three-quarters of the
respondents were very concerned
about the lack of general
information they had received,
either from the Law Society or their
employers about the PCC. Indeed,
over half had not received any up to
date information, either from their
employers or the Law Society.The
information which they had
received was of poor quality. Many
respondents found themselves
needing to be proactive, gleaning
some information from the Law
Society website (which apparently
requires radical updating).
Many respondents stated that they
were unclear as to the PCC’s
objectives. Many also stated that
they did not think that the PCC
would provide training of any
better quality than they had
received either from the Diploma
or from their day-to-day training.
Over half of the respondents felt
that the PCC would not be
beneficial to their training. In fact,
one respondent made the point
that the PCC was merely a new
“buzz word”.
The respondents were also
concerned about the stage of
organisation of the impending PCC.
Only half of all respondents had
been able to discuss the
arrangements for their attending
the PCC. Worryingly, 54 out of the
66 respondents had not yet
secured a place to attend an
accredited PCC. Dundee University
has withdrawn its application for
accreditation and Aberdeen
University will only be providing
twenty places at any one time.
Accordingly most respondents felt
that matters such as travel and
accommodation costs had not been
taken into consideration. Many
respondents did not know whether
or not their employer would pay for
the cost of travel and/or
accommodation.
Whilst we do not claim that the
sample taken is representative of all
first year trainees it, at the very
least, provides an indication as to
the current state of awareness of
and preparation for the PCC. We
feel that the Society must issue
further guidance on an urgent basis.
Marcus Whyte,
Committee Member on behalf of the
Scottish Young Lawyers Association
May I use the columns of your esteemed publication to draw to the attention of the profession a new
and worrying addition to the pressures which afflict our daily efforts.Today, a client threatened me with
the Legal Omnibus (sic).
Come oan, get aff !
Doug Winchester,Winchesters, Aberdeenshire

No increase in funding commitment
We are pleased to note that our letter published in the
March issue of the Journal elicited responses from Ian
Smart as convener of the Legal Aid Committee and
Alex Quinn, Law Accountant.
Disappointingly, neither correspondent seeks to address
the key issue which is the complete absence of any
certainty of funding to meet the profession’s aspirations.
By his own admission Mr Quinn has given this area little
thought. Mr Smart suggests that savings in other areas
“should” provide scope for an improved level of
remuneration. There is, however, little published
evidence to support this somewhat vague and
unconvincing assertion. Indeed, the Deputy First
Minister has recently announced a number of measures
which will have the effect of widening and deepening
the current legal aid system, with consequent pressures
on the existing funds.
Ironically, during the very week in which Mr Smart’s
letter appeared, the adviser to the Justice 1 Committee
remarked in paragraph 17 of the scrutiny of the budget
process “fees for civil legal aid remain frozen and there
is no evidence in the budget of any anticipated increase
in expense in the legal aid area” and “the Minister for
Justice indicated that he was not ruling out an increase
and was meeting with the tripartite body to discuss
such matters. There appears to be no budgetary
provision for any increase”.
In short, the law accountants remain of the view that, at
the moment, there is no “prize”, to use Mr Smart’s
terminology, and the profession are being asked to
accept a whole new raft of administrative layers of legal
aid bureaucracy without any real increase in funding
commitment. Significantly, the adviser’s report for 2003
also confirms a 22% real term increase in the
administrative budget of the Legal Aid Board based on
the 2000/2001 constant and a 4.1% real reduction in
payments to the profession as part of the frozen overall
budget.
Would it not be considered incompetent for a solicitor
to advise clients to involve themselves in a process in
which the other party did not appear to have the
where-with-all to fulfil his part of the bargain? Why then
should the profession be asked to engage in just a such
a process?
Alastair Greig, Law Accountant, Edinburgh, on behalf of the
law accountants listed on p14 of The Journal in March
Journal
Letters
15 May 2002 Volume 47 No 5

Journal
People
Brodies
Derek Arnott
Brodies
Bruce Stephen
May 2002 Volume 47 No 5 16
ADAIRS, Dumbarton, are pleased
to announce that with effect from
1st May 2002, their associate, Jack
Scott Adair, has been assumed as a
partner in the firm and that their
assistant, Jill Glen Allan Foggo, has
been appointed as an associate of
the firm.
Robert J Arbuthnott and Catherine
McClanachan are pleased to
announce that with effect from
29th April 2002 they practise
under the name of
ARBUTHNOTT &
McCLANACHAN, Solicitors and
Estate Agents, from 77 Main Street,
Davidsons Mains, Edinburgh.
BLACKWOOD & SMITH,WS,
Peebles, are pleased to announce
that with effect from 1st April
2002 their assistant, Sally Anne
Swinney, has been appointed as an
associate of the firm.
Dorothy J Amos intimates her
resignation as Private Client
assistant and Practice Manager at
McVIES, WS, Haddington, and that,
with effect from 1st January 2002,
she commenced practice as a
specialist in executry
administration. She can be
contacted at BORTHWICK BELL,
3 Chapel Mains, Blainslie, Galashiels
TD1 2PN, telephone/fax 01896
860700.
BOYDS, Glasgow and Edinburgh,
are delighted to announce the
appointment of Emily Wiewiorka
as a partner. Emily has been with
the firm for just over a year and
she is Head of BOYDS’ IP/IT Unit.
She was formerly with MASONS.
BRODIES, Edinburgh, is
delighted to announce two new
banking appointments to the firm.
With effect from 1st April 2002,
Bruce Stephen has been assumed
as a partner. Bruce heads up the
banking group and joins from
TODS MURRAY, where he was
Intimations for the people section should be sent to:
Denise Robertson, Record Dept, Law Society of Scotland,
26 Drumsheugh Gardens, Edinburgh EH3 7YR
e: deniserobertson@lawscot.org.uk
also a partner. Derek Arnott,
former Head of Group Legal
Services at THE ROYAL BANK
OF SCOTLAND GROUP, joins
the firm as a consultant with
effect from 15th April 2002. He
brings 30 years top-level
experience of the financial
services sector to the banking and
corporate clients of the firm. The
firm is also pleased to announce
that Jennifer McWilliams, formerly
of MACLAY MURRAY &
SPENS/MACKAY SIMON, has
joined the employment team as
an associate.
BURNETT & REID, Aberdeen,
intimate that their partner Roger
Lawrence has retired from practice
with effect from 31st March 2002.
CLARK BOYLE & CO, Glasgow,
are pleased to intimate that with
effect from 13th May 2002 they
will have relocated to 33A Gordon
Street, Glasgow G1 3PF. The rest
of their contact details remain the
same.
THE COMMERCIAL LAW
PRACTICE LLP, Aberdeen, are
pleased to announce that, with
effect from 15th April 2002, their
associate, Keir Willox, has been
appointed as a member of the
Limited Liability Partnership and
that their assistants, Fiona J Mitchell
and Anne M O’Neill, have been
appointed as associates from that
date.
DREVER & HEDDLE, Kirkwall, are
pleased to announce that with
effect from 1st April 2002, their
assistant, Michael Sydney William
Scott, has been appointed
associate of the firm.
Jane Rattray and Lesley McFall
(formerly of BLACKLOCK
THORLEY, Leith, Edinburgh) and
Jackie Pringle (formerly of
LOVELLS, Edinburgh) are pleased
to announce that with effect from
8th April 2002 they have
commenced practice under the
name of EDINBURGH LAW. The
new firm is based at Barrie’s Close,
1 Parliament Square, Edinburgh,
EH1 1RB. Telephone 0131 220
6600, fax 0131 225 3444, Legal
Post LP-3 Edinburgh 15 and e-mail
info@edinburghlaw.info.
Annabell Fowles intimates that she
has resigned from the SCOTTISH
ENVIRONMENT PROTECTION
AGENCY to take up appointment
as Head of Legal Services for the
SCOTTISH COMMISSION FOR
THE REGULATION OF CARE
with effect from 1st April 2002.
ALEXANDER GEORGE & CO,
Banff, Buckie and Macduff are
pleased to intimate that their
assistant Deborah A. Wilson has
been appointed an associate with
effect from 25th March 2002.
D.W. GEORGESON & SON, Wick
and Thurso, are pleased to
announce that with effect from 1st
April 2002, Stephen Copinger,
formerly an associate of the firm,
has been assumed as a partner.
GRIGOR & YOUNG, Elgin and
Buckie, are pleased to intimate that
with effect from 1st May 2002 they
have appointed Janet Hilary Taylor
as an associate.
Linda George and Alexis Hunter
are delighted to announce their
partnership as HUNTERS FAMILY
LAW at Muirbrow Chambers,
118 Cadzow Street, Hamilton,
ML3 6HP, telephone 01698
459200, fax 01698 459215 and
e-mail info@huntersfamilylaw.co.uk
INTRABANK EXPERT
WITNESS has appointed John
Robertson, formerly Company
Secretary British Linen Bank, as its
agent in Scotland. He can be
contacted at 0131 667 4229 or
by fax on 0131 668 1471 or

Photographs of people featured can be sent to:
The Journal, Studio 2001, Mile End,
Paisley PA1 1JS
by e-mail at Scotland@intrabankexpert-witness.co.uk.
In case of
difficulty phone 020 7250 3660.
Please see Sponsorship strip
below.
THE KELLAS PARTNERSHIP,
Inverurie, are pleased to announce
that with effect from 1st March
2002 their assistant, Elizabeth Ann
Cobban, has been appointed as an
associate of the firm.
KERR & CO, Glasgow and Stirling,
are pleased to announce that with
effect from 6th April 2002 their
associates, Andrew Thomson and
Alison Jane Forsyth, have been
assumed as partners of the firm.
LEDINGHAM CHALMERS,
Aberdeen, Edinburgh, Inverness,
Baku, Istanbul and Falkland Islands,
intimates that on 1st May 2002
Eunice Margaret McConnach was
assumed as a partner and Joan
Catto joined the firm as a partner,
both in the Aberdeen office.
LINDSAYS, WS, Edinburgh, wish to
intimate that Robert J Arbuthnott
and Catherine McClanachan
resigned as partners of the firm
with effect from 26th April 2002
and with effect from 29th April
2002 will practise from the former
LINDSAYS, WS, branch office at 77
Main Street, Davidsons Mains,
Edinburgh, under the name of
ARBUTHNOTT &
McCLANACHAN.
MCCASH & HUNTER, Perth,
is pleased to announce that
Margarita Drew, formerly of
DREW-PAUL & MURRAY, has
joined the firm as a consultant
from 1st April 2002.
McCLURE AND PARTNERS,
currently of 16 Park Circus,
Glasgow, would like to announce
that they are moving to new
premises and their new contact
details as and from Monday 29th
April 2002 are as follows: 2nd
Floor,Troon House, 199 St.Vincent
Street, Glasgow G2 5QD,
telephone 0141 204 0445, fax
numbers 0141 204 6180, 0141
204 6181, DX and e-mail address
remain unchanged, namely GW65,
Glasgow and
mcclurepartners.co.uk
MACDONALD GARVIE, Dundee,
and ROLLO, STEVEN & BOND,
Dundee, are pleased to announce
the merger of the two firms with
effect from 1st May 2002. The
new firm is known as RSB
MACDONALD and operates
from 17/19 Crichton Street,
Dundee, DD1 3AR, telephone
01382 202025, fax 01382 203201
and at 31 Reform Street, Dundee
DD1 1SG, telephone 01382
229981 and fax 01382 202233.
The partners are John Macdonald,
Lesley Macdonald, Derek Duncan
and Maureen J. Collison. Ian
Steven continues as a full time
working consultant of the new
firm. Andrew Lyall also continues
in a full time working capacity with
the new firm. The firm’s e-mail is
law@rsbmacdonald.co.uk. The
firm’s web site can be found at
www.rsbmacdonald.co.uk.
MACDONALDS, Glasgow and
East Kilbride, are pleased to
intimate that Morag Stuart,
formerly of RUSSELLS GIBSON
McCAFFREY, Glasgow, joined the
firm as an assistant in the
Commercial Litigation Department
with effect from 2nd April 2002.
ALLAN MCDOUGALL & CO,
SSC, Edinburgh, Penicuik and
Dalkeith, intimate the retiral from
the firm of Elizabeth Anne
Macdonald Maciver on 31st March
2002. They also intimate that from
1st April the name of the firm is
ALLAN MCDOUGALL and the
firm continues to operate from the
existing offices. They also
announce the assumption as a
partner of Fiona Robertson Hardie
on 2nd April 2002.
Journal
People
Intrabank Expert Witness
Ron Gerrard
17 May 2002 Volume 47 No 5

Journal
People
Macleod & MacCallum
Karen Elizabeth Cowan
and Roderick Kenneth MacLean
Mowat Dean
Lesley-Anne Barnes
Morton Fraser
From left to right: Sue Hunter,
John Lunn, Lorne Byatt,
Susan Younger, Roderick Alexander
and Innes Clark
May 2002 Volume 47 No 5 18
MACLEOD & MacCALLUM,
Inverness, are pleased to announce
that as from 1st April 2002 Karen
Elizabeth Cowan and Roderick
Kenneth MacLean have both joined
the firm as associates.
McQUITTYS, Cupar, intimate that
with effect from 30th April 2002
George McQuitty has retired from
the partnership. The business has
been acquired by William Walls
and Mr McQuitty continues to be
associated with the firm as a
consultant. The firm name remains
unchanged.
MITCHELLS ROBERTON,
Glasgow, intimate that with effect
from 1st March 2002 their
partner Craig Dunbar resigned
from the partnership. He is taking
a career break and the partners
wish him well.
The Partners of MORTON
FRASER, Edinburgh, are delighted
to intimate the assumption of
three new partners with effect
from 1st May 2002. They are
Susan Younger, John Lunn and Innes
Clark. They further intimate that
D. John McNeil has retired as a
partner of the firm with effect
from 30th April 2002. He remains
as a consultant to the firm for six
months from 1st May 2002.
MOWAT DEAN, Edinburgh, are
pleased to intimate that with effect
from 4th April 2002, Lesley-Anne
Barnes was appointed as an
associate of the firm.
GEO. & JAS. OLIVER,WS, Hawick,
intimate the retiral of Michael
Henry David Armstrong, WS, as a
partner with effect from 31st
March 2002. John Anthony Lindsay
Oliver, WS, and John Paterson
Hunter are pleased to be
continuing the firm under the
same name.
PAGAN OSBORNE, Cupar,
Anstruther, St Andrews, Edinburgh
and Dunfermline, intimate the
retiral as a partner of William Low,
with effect from 30th April 2002.
Mr Low continues to be associated
with the firm as a consultant.
PROVEN & CO, Edinburgh, hereby
intimate that with effect from 29th
April 2002 they have relocated to
8 Manor Place, Edinburgh, EH3
7DD. The telephone and fax
numbers remain the same:
0131 220 6100.
Jane Rattray intimates that with
effect from 31st March 2002, she
resigned as a partner in
BLACKLOCK THORLEY, 89
Constitution Street, Edinburgh.
She has now commenced practice
in EDINBURGH LAW, Barrie’s
Close, 1 Parliament Square,
Edinburgh, EH1 1RB. Telephone
0131 220 6600, fax 0131 225
3444, Legal Post LP-3 Edinburgh 15
and e-mail info@edinburghlaw.info.
T.F. REID & DONALDSON,
Paisley, intimate the retiral as a
partner of Caroline Gillespie with
effect from 15th April 2002.
ROSS ROGERS & CO, Rutherglen,
intimate that Stephen McGuire has
resigned from the partnership with
effect from 31st March 2002.
RUSSEL & AITKEN, Edinburgh,
Falkirk and Denny, are delighted to
announce that Karen Joan Harvie
Wright, Johnston and Mackenzie
has been appointed an associate in
the Litigation Department of their
Edinburgh office with effect from
1st April 2002. Karen specialises in
Employment Law.
SKENE EDWARDS,WS,
Edinburgh, are pleased to intimate
the appointment with effect from
15th April 2002, of Lesley Jane
Gordon as an associate of the
firm.
SOLICITORS DIRECT, Aberdeen,
wish to intimate their change of
address from 47 Albert Street, to
new premises at 4 Golden Square,
Aberdeen, AB11 6DA. The firm’s
DX number and contact
telephone numbers will remain
unchanged.
WRIGHT, JOHNSTON &
MACKENZIE, Glasgow and
Edinburgh, are delighted to
announce the appointment of six
new partners. Clare Neilson,
Yvonne Dunn, Donna Kelly, Lindsay
Kennedy, Gail Donaldson and Liam
Entwistle, who have all been
associates with the firm.They have
been assumed as partners from
1st April 2002.
Top row:Yvonne Dunn, Lindsay Kennedy, Donna Kelly
Bottom row: Clare Neilson, Liam Entwistle, Gail Donaldson

Sleeping with
the enemy
Journal
Opinion
Introducing the second of our regular columnists, Professor John Sturrock QC,
who argues we must look beyond conflict to a concept of “joint gain”
A century and a half ago Abraham Lincoln said: “The
only safe way to destroy your enemy is to make him
your friend”. Whether on a local or international level,
this seems easier said than done.“An eye for an eye and
we all go blind,” reflected Mahatma Gandhi. As lawyers,
can we preserve the vision shown by our predecessors
Lincoln and Gandhi?
Nelson Mandela once said: “I never sought to
undermine Mr de Klerk, for the practical reason that the
weaker he was, the weaker the negotiations process.To
make peace with an enemy one must work with that
enemy, and the enemy must become one’s partner.”
The history of Mandela’s application of this theory is the
recent history of South Africa. As the two sides to the
apartheid conflict came together, they realised that their
perceptions of each other were wrong. They came to
see that there was an alternative to a white victory or a
black victory – or even a split-the-difference
compromise.There was a future in which to win did not
mean that the other side had to lose. It was possible for
all sides to benefit. Hard work and difficult, yes, but much
less so than all-out bloody civil war.
According to William Ury, author of an inspiring book
“The Third Side:Why We Fight and How We Can Stop”
(Penguin), there is a growing realisation of our need to
be much more creative in our approach to conflict,
whether in personal relationships, in business and
commerce or in world politics. Ury identifies trends
throughout the world in which a transformation of the
culture of conflict is occurring, from coercion to consent
and from force to mutual interest.
I saw tangible evidence of this at the recent American
Bar Association conference on Dispute Resolution in
Seattle. There is a cultural wave sweeping through the
legal profession and government bodies in the US.The
lawyer’s job, as the Attorney General for Washington
State put it, is about solving average problems for
average people, not winning or losing – and
remembering that there are two sides to almost any
story.
Her own example was a remarkable one. The recent
mediated settlement of litigation brought collectively by
the various States against the tobacco industry resulted
in an “holistic” solution, viewed by parties as a mutually
satisfactory outcome. A rigorous approach to the issues
was accompanied by increased respect and
understanding on all sides, producing a speedy, wideranging
resolution of what could have been interminable
conflict.
In negotiation and mediation training courses, I often
invite participants to take part in The Gain Game, a
version of a game called The Prisoners’ Dilemma.
Participants learn how easily we become competitive
and seek to requite the other side for wrongs allegedly
done. Trust is easily broken, and once lost is hard to
regain. The urge to win at the expense of the other is
strong for many. Language (careful and careless) sends
messages which are easily misunderstood. Respect for
the other side is replaced by antagonism. Only at the
end do many discover that apparent victory can be
pyrrhic and bitter-sweet, producing a relatively poor
immediate outcome and an even poorer prospect of
successful negotiation in the future.
The perceptive players learn early (or through
experience) that working collaboratively with the other
side will often (nearly always) produce a better result,
not only for themselves and their client but also for the
other side. And it doesn’t matter if the other side also
gains! Indeed, that may be the key to getting what each
side really wants.
The concept of “joint gain” is often a difficult one to
grasp in our adversarial tradition. And yet, as Edward de
Bono has pointed out, argument which merely seeks to
prove that one side is right and the other side is wrong
can be extremely inefficient.Working co-operatively (or
in co-opetition as de Bono has described it) can
generate quite novel outcomes in many conflicts. Often,
however, we are constrained by our training and
education, by our culture and work pressures, from
thinking “out of the box”.
Business and commerce is moving on. Individuals are
less likely to accept things as they always were.The role
of the lawyer in society is under scrutiny. Paradoxically in
our rights-based culture, the future for many more
lawyers is likely to be in the role of creative problemsolvers,
or “solution-seekers”, assisting clients to achieve
co-operative results which meet real interests rather
than vindicating positions or rights. And we will find that
co-operation can be contagious. jgsturrock@aol.com
e:
19 May 2002 Volume 47 No 5

Journal
Intermediate Diets
No compelling grounds
for retrospective legislation
Legislation to plug the loophole
on intermediate diets could
itself be open to challenge,
writes David Leighton
The 8th of March saw royal assent being granted
to the Criminal Procedure (Amendment) Act
20021 . It is a statute that has been passed through
the Scottish Parliament with considerable haste
after the Court of Criminal Appeal decision in
Reynolds v Procurator Fiscal, Linlithgow. But does
it put to rest the decision in Reynolds?
Reynolds Case
For those not entirely familiar with the facts of
that case, Mr Reynolds appeared on complaint,
pled not guilty and was liberated pending further
procedure. Intermediate diet and trial diet were
fixed. Mr Reynolds failed to appear at the
intermediate diet. As was usual, a warrant for his
apprehension was granted, but the trial was not
explicitly discharged. The trial date came and
went. Subsequently, Mr Reynolds was arrested in
pursuance of the warrant, appeared in court and
maintained his not guilty plea, intermediate diet
and trial diet were fixed. At the intermediate diet,
a plea was taken to the competency of the
complaint.
The defence position was that the instance had
fallen when the case had not been called on the
first trial date, a duly assigned diet in the case.The
crown’s position was that, by implication, the
grant of the warrant discharged the diet. The
sheriff agreed with the crown, though granted the
defence leave to appeal.The defence appeal was
successful. Failure to discharge the trial diet
explicitly when granting a warrant at the
intermediate diet meant that when the case did
not call on the trial date the instance fell.
The decision in Reynolds meant that ongoing
prosecutions for individuals who had failed to
appear at an intermediate diet were in jeopardy.
But the real sting in the tail of the Reynolds case
is acknowledged within the 8th paragraph of the
court’s judgment, when considering whether the
trial date was a pre-emptory diet, the court
states:
In Hull v HM Advocate 1945 J.C. 83 the Lord
Justice-Clerk (Cooper) stated (at page 86) as
follows:
May 2002 Volume 47 No 5 20
“It is a cardinal rule of our criminal procedure
that a criminal diet is, and must be made,
peremptory, and that, if the diet is not called or
duly adjourned or continued on the date in the
citation, the instance falls (Hume, vol. ii, 263, 264;
Alison, vol. ii, 343, 344; Macdonald, (4th ed), 471).
The rule has again and again been rigorously
enforced, its non-observance being treated as
involving a fundamental nullity requiring that any
conviction which has followed should be
quashed.”
Complaints not called are null, not incompetent.
There is no need to advance any sort of
preliminary plea. Clearly this would have a
dramatic effect on a large number of convictions,
opening them to challenge by bill of suspension
or, for sentences already served, by application to
the Scottish Criminal Cases Review Commission
seeking a referral of the case to the appeal court.
The Legislation
Section 1 of the Criminal Procedure
(Amendment) Act provides that there be
inserted in the Criminal Procedure Act 1995 at
the end of section 150:
“(3A) The grant, under subsection (3) above, at
an intermediate diet of a warrant to apprehend
the accused has the effect of discharging the trial
diet as respects that accused.
(3B) Subsection (3A) above is subject to any
order to different effect made by the court when
granting the warrant.”
The section provides, importantly, that this
amendment shall be regarded as having always
had effect.
The section makes similar provision in respect of
s338(1) of the 1975 Act, though only back-dates
the amendment to the coming into force of
section 15 of the Criminal Justice (Scotland) Act
1980, the section that introduced the present
system of intermediate diets.
Section 2 provides for section 1 to take effect the
day after royal assent. As stated, royal assent was
received on 8th March 2002.
The point to note is that this legislation is
retrospective. Although there have been very
similar pieces of retrospective legislation before –
the Criminal Procedure (Intermediate Diets)
(Scotland) Act 1998 being a notable example –
these were passed by the Westminster
Parliament, not the Scottish Parliament. Acts of
the Scottish Parliament, of course, are subject to
being struck down under the Scotland Act if they
are incompatible with Convention rights.
Retrospective effect
In the latter part of last year, the Privy Council
made a decision on the first act of the Scottish
Parliament, a retrospective piece of legislation. In
that case, A v The Scottish Ministers (PC) 2001
SLT 1331, the Privy Council accepted that
retrospective legislation by the Scottish
Parliament was not necessarily incompatible with
human rights.
So if the Privy Council accepts retrospective
legislation and the Scottish Parliament has passed
an act to reverse the decision in Reynolds has the
Reynolds case been consigned to history almost
as soon as it was decided?
Although in A v The Scottish Ministers there was
authority from the Privy Council to the effect that

etrospective legislation was not
beyond the competence of the
Scottish Parliament that was a very
different case to Reynolds. A v The
Scottish Ministers dealt with the
Mental Health (Public Safety and
Appeals) (Scotland) Act 19992 ,
which was brought into effect to
deal with the repercussions of the
high-profile Ruddle case.
The two principal judgments in
A v The Scottish Ministers (PC)
2001 SLT 1331 are delivered by
Lord Clyde and by Lord Hope. Both
of them cite with approval and
without caveat the cases of
National & Provincial Building
Society v United Kingdom 1997
(25) EHRR 127 and Zielinski v
France (1999) 31 EHRR 19. These
cases are both markedly against any
imposition of retrospective
legislation. Retrospective legislation
must be treated with “the greatest
possible degree of circumspection”
– National & Provincial Building
Society v UK p181 para 112.And, in
a passage quoted by Lord Hope
from Zielinski v France para 57:
“The court reaffirms that while in
principle the legislature is not
precluded in civil matters from
adopting new retrospective
provisions to regulate rights under
existing laws, the principle of the
rule of law and the notion of fair
trial enshrined in article 6 preclude
any interference by the legislature –
other than on compelling grounds
of the general interest – with the
administration of justice designed to
influence the judicial determination
of a dispute”.
A v The Scottish Ministers
concerned a very limited number of
individuals who in the words of
Lord Clyde at 1346 D: “had
committed crimes of the most
serious kind, including in particular
homicide, and had a history of
mental disorder which might be
held to be untreatable. As the law
stood these persons would be
entitled to be discharged into the
society of others giving rise to a
potentially serious danger for those
who came in contact with them.”
And in the words of Lord Hope at
1340 F: “The purpose of the 1999
Act was to protect the public …
from lethal attacks by mentally
disordered persons with a prior
history of committing homicide
e:
samwillis@cableinet.co.uk
Journal
Intermediate Diets
whose mental disorder was
regarded as untreatable”. In the
circumstances of this case, the court
was willing to rule that the
retrospective legislation was not
incompatible with the convention.
Compelling Grounds?
So are there compelling grounds of
the general interest that require the
Criminal Procedure (Scotland) Act
to be retrospective? If anyone
challenges the legislation then the
Judicial Committee of the Privy
Council will probably decide the
question, on appeal from the Court
of Criminal Appeal.
Some possible arguments in favour
of compelling grounds include:
1 that there are a large number of
cases involved and striking at the
act is likely to increase the
workload of the court system
considerably, and
2 that individuals manifestly guilty
of offences would be acquitted.
Some possible arguments against
compelling grounds include:
1 the cases involved, by their very
nature, cannot be that serious –
they were all raised as summary
complaints,
2 most sentences for these
convictions have already been
served, and
3 the crown would be able to reraise
proceedings against any
individual who successfully
appealed, so long as the action
was not time-barred.
As I have said, ultimately any
challenge is likely to go all the way
to the Judicial Committee of the
Privy Council, meaning a
considerable period of time before
a decision. A period of time in
which all manner of things might
occur, but, at the moment, it is
difficult to see any compelling
grounds for the legislation being
retrospective.
The full text of the Reynolds case
is available at
http://www.scotcourts.gov.uk
The full texts of the European cases
are available at
http://www.echr.coe.int/
David Leighton presently works for
the Scottish Executive.
He was formerly employed in
private practice in Edinburgh
1 2002 asp 4
2 1999 asp 1

Journal
Repossession
Serving notices
under the
Mortgage
Rights Act
May 2002 Volume 47 No 5 22
Mark Higgins clarifies whether debtors
can avoid repossession simply
by refusing to accept a recorded delivery notice
Of all the matters changed by the Mortgage Rights (Scotland) Act 2001, that
which has received the most publicity is how notices will be served. In
particular, it has been suggested that debtors in arrears can avoid
repossession by simply refusing to answer their door to receive a recorded
delivery notice and cannot then receive service by way of sheriff officer.
A distinction requires to be made between the service of a calling-up
notice, notice of default or court proceedings on the one hand and service
of notices to occupiers and explanatory notices to accompany court
proceedings on the other. In other words, there is a difference in the law as
it applies to the existing forms and procedures to be followed, which have
been adjusted by the 2001 Act, and the new forms which have been
introduced by the 2001 Act.
Service of forms adjusted by the 2001 Act
and of court proceedings
The Conveyancing and Feudal Reform (Scotland) Act 1970 provides that
service of a calling-up notice may be made by delivery to the person on
whom it is desired to be served or the notice may be sent by registered or
recorded delivery post to him at his last known address1 . In certain
circumstances, service should be made on the Extractor of the Court of
Session. Section 21(2) of the 1970 Act provides that the notice of default
“… shall be served in the like manner and with the like requirements as to
proof of service as a calling-up notice.”
In the case of court proceedings under the 1970 Act, they may be served
by the normal rules governing service of writs2 . In the case of court
proceedings under the Heritable Securities (Scotland) Act 1894, service of
the writ again falls to be governed by the standard rules on service3 .
Although the form of calling-up notice and notice of default are revised by

the 2001 Act, none of the rules on
service detailed above is changed.
It is therefore clear that service of
calling-up notices and notices of
default continue to be governed by
the 1970 Act and that either
recorded delivery or personal
service of those notices is entirely
competent under section 19(6) of
the 1970 Act. Similarly, as regards
service of court writs (as opposed
to the notices specified to
accompany them), there is nothing
in the 2001 Act which precludes
service by the normal service
methods, including by sheriff
officer4 . It is therefore submitted
that it is incorrect to say that
personal service is now
incompetent generally in
repossession actions or, indeed, that
there is any change to the existing
methods of service of calling-up
notices, notices of default or court
proceedings.
Service of forms introduced
by the 2001 Act
These forms include firstly each of
the forms which must be served on
the occupier, namely Forms BB & F
of Schedule 6 to the 1970 Act and
Form 2 of Part 2 of the Schedule to
the 2001 Act. Secondly, the forms
include the forms which must be
served along with court
proceedings, namely Form E of
Schedule 6 to the 1970 Act and
Form 1 of Part 2 of the Schedule to
the 2001 Act.There are in fact three
arguments as to how service of
these notices should be effected,
each of which is considered below.
Given the confusion which has
arisen over this issue, it is worth
repeating the relevant statutory
provisions in full.
The first argument is based on a
literal reading of the new provisions
in relation to service, inserted into
the 1970 Act by the 2001 Act.
Section 24 of the 1970 Act now
provides:
“(3) Where the creditor applies to
the court under subsection (1)
above, he shall…
■ serve on the debtor and (where
the proprietor is not the
debtor) on the proprietor a
notice in conformity with Form
E of Schedule 6 to this Act, and
■ serve on the occupier of the
security subjects a notice in
Journal
Repossession
conformity with Form F of that
Schedule.
(4) Notices under subsection (3)
above shall be sent by recorded
delivery letter addressed-
■ in the case of a notice under
subsection (3)(a), to the debtor
or…proprietor…
■ in the case of a notice under
subsection (3)(b), to ‘The
Occupier’…”
The argument goes that as the Act
simply requires the notices to be
sent by recorded delivery, the
creditor does not require to
establish receipt by the debtor,
whether through the recorded
delivery service or otherwise. The
creditor fulfils his requirements
under the Act when the letter is
sent.This argument is supported by
Cathie Craigie5 and by the Scottish
Executive.
This argument is an attractive
proposition on a reading of s24(4)
but matters are complicated by the
mandatory requirement on the
creditor in terms of s24(3) to
“serve…a notice”. Nonetheless, it is
submitted that the two subsections
must be read together. Doing so
suggests that the method of the
service mentioned in s24(3) is that
provided for in s24(4).This leads to
the conclusion that a creditor will
indeed have complied with his
duties if he simply sends the notices
in Forms E & F by recorded delivery
irrespective of whether actual
service results. The same argument
appears to hold good in relation to
the notice to the occupier which
must accompany service of a
calling-up notice or notice of
default.
The effect of the second argument,
if it was successful, would be to
make repossession extremely
difficult if a debtor did not answer
his door to accept recorded
delivery packages, or if the debtor
or occupier was not present at the
subjects for any reason. The nature
of the second argument is simply to
rebut the premise of the first that
sending the explanatory notices
which accompany proceedings or
the notices to the occupier is
sufficient service. If service cannot
be effected by recorded delivery,
the argument goes, it remains
incumbent on the creditor to

Journal
Repossession
May 2002 Volume 47 No 5 24
achieve service. However, as no other method of
service is competently provided for in the new
provisions, he is unable to comply with his service
obligation. In the case of a calling-up notice or notice of
default, the legislation expressly provides that if a
creditor has failed to comply, the calling-up notice or
notice of default are held to be of no effect6 . In the case
of court proceedings where, for example, Form F has
not been properly served on the occupier, the
argument would be that the action is premature due to
the failure to serve the mandatory notice.
There is support, below, for the view that no other
method of service is competent and so the difference
between the first and second arguments comes to be
whether a creditor has fulfilled his obligations simply by
sending the notices whether or not actual service
results. The issue cannot be free from doubt but it is
submitted that the first argument is to be preferred for
the reasons stated above.
The third argument, which has also been advanced by
Ms Craigie and the Scottish Executive, is that the
difference between the first and second arguments is
academic as the Act does not in fact preclude service by
other means, as it does not provide that notices may be
issued only by recorded delivery post. It is certainly true
that the 2001 Act does not expressly exclude service by
other means.
The view that service by sheriff officers remains
competent has received some support from
commentators on the Act. Indeed, it appears that the
drafters of the legislation envisaged that service might
take place in an alternative manner.The new certificate
of citation provides that court proceedings may be
served by sheriff officer7 and it may be assumed that the
Executive proceeded on the basis that the court
proceedings would be served at the same time as the
explanatory notices in Forms E & F.While that may well
have been the state of mind which led to these
provisions8 , it is difficult to interpret “shall be sent by
recorded delivery” as meaning that other methods of
service are permitted. It is submitted that there is
insufficient ambiguity in the wording which would allow
the courts to give creditors latitude in their choice of
method of service.
Further, in Govan Housing Society v Kane9 , Sheriff
Johnston declined to permit service of a notice to quit
by any method of service other than those provided for
in Ordinary Cause Rule 34.8. It is accordingly submitted
that this argument is wrong and that service of the
notices to the occupier and to accompany court
proceedings is not permitted by sheriff officer10 .
Nevertheless, a creditor may take the view that the best
option is a ‘belt and braces’ approach where, having sent
an unsuccessful recorded delivery notice to the
occupier or notice accompanying court proceedings to
the debtor or proprietor, the creditor then has the
notice served by sheriff officer11 .
There are attractions to this approach.The creditor has
sent the notices by recorded delivery and so, if the first
argument is correct, he has fulfilled his obligations. If it is
incorrect, but the third argument is correct, he meets his
requirements by service by sheriff officer. If the second
argument is correct, he has not validly complied with his
obligations but it would have been impossible to do so
and he has at least done all he can to try to bring the
matter to the attention of the recipient of the notice.
Regrettably, the matter may not be as simple as that. If
the second argument is correct, then service of the
notices has not been made and, despite what the
creditor may have tried to do, there may be a
fundamental problem with his right to proceed further.
If that was all, there might be no real downside in this
approach, other than the additional cost of sheriff officers.
However, serving the notices by sheriff officer where the
creditor is not entitled to do so may give rise to a claim
by the recipient that the creditor has wrongfully
instructed sheriff officers to serve a document on him
when he has no power to do so. Such service might be
argued to be akin to wrongful diligence12 or a breach of
Article 8 and Article 1 of the First Protocol to the
European Convention on Human Rights.
Practical issues of service
Very often the debtor will be the same person as the
occupier and so the difficulty over service of notices on
the occupier may be overcome if service is made on the
debtor. However, that does not assist in resolving the
difficulties in relation to service of explanatory notices,
such as Form E, on the debtor himself.
It is undoubtedly the case that the difficulties over these
provisions will soon be the subject of court decision. As
service of the explanatory notice forms which
accompany court proceedings should be served with
the service copy court papers, a common occurrence
will be that the creditor has both the form and the
service copy court papers returned to him together
where the recorded delivery attempt has been
unsuccessful.
Standing the views expressed above, the appropriate
course for the creditor to adopt in these circumstances
is to remove the explanatory notice form from the
package and thereafter have the service copy court
papers served by sheriff officers, counter-intuitive as that
at first may seem. The alternative, in terms of the third
argument, is to have all the papers served by sheriff
officers. Even if the explanatory notice (such as Form E)
is not served by sheriff officers, the defender will still
have notice of his right to make an application for a
Section 2 Order as the new Form of Citation for such
actions13 makes reference to his ability to do so and the
procedure therefor.
Notwithstanding the difficulties on service, it may be
possible for a creditor to argue that appearance by a
debtor or applicant cures any defect in service of the
court proceedings14 . However, if the defect relates to
service of a notice on which the action is based, such as
where a calling-up notice has been raised and followed
by court proceedings related thereto, appearance in the
court action will not remedy the defect.
Conclusion
It is submitted that the creditor fulfils with his obligations
in relation to service on the occupier and service of
accompanying notices to court proceedings if he sends

e:
MH@golds.co.uk
Journal
Repossession
the notices by recorded delivery, irrespective of whether actual service
results. The alternative for a creditor is to instruct sheriff officers to serve
these notices. It is difficult to criticise a creditor who so acts or, standing the
general confusion and the view of the Scottish Executive that this is valid, a
solicitor who advises his client to proceed in this manner. However, such a
course may give rise to further problems for the creditor and, it is
submitted, does not in fact cure any problems with service.
A rumour was advanced that emergency legislation was being rushed
through to remedy the alleged defect but that proved to be unfounded.The
Scottish Executive has said that there is no difficulty with the current
legislation and that no amendment legislation is being drafted or indeed
necessary. Clearly an authoritative ruling will be required before there is any
certainty.
Mark Higgins, a partner in Golds, has lectured widely on the 2001 Act to
amongst others the Council of Mortgage Lenders. He recently chaired The
Mortgage Law Conference 2002 organised by Central Law Training. He is the
author of Scottish Repossessions, to be published by W Green in May 2002.
notes ■ notes ■ notes ■ notes
1 S.19(6)
2 Chapter 5 of the Ordinary
Cause Rules.
3 in terms of the Summary Cause
Rules, Sheriff Court 1976 (S.I.
1976 No. 476), unless
declarator or certain other
craves are sought in which case
the Ordinary Cause Rules apply.
4 Ss.23(4) of the 1970 Act and
4(5) of the 2001 Act relate only
to service of Notices.
5 the MSP who introduced the
Bill which led to the 2001 Act.
6 s.19A(3) of 1970 Act, dealing
with calling-up notices, which is
applied to notices of default by
s.21(2A) the 1970 Act.
7 Form O6 of the First Schedule
to the Sheriff Courts (Scotland)
Act 1907 as inserted by S.S.I.
2002 No. 7.
8 although the Explanatory Notes
to the Act are quite clear that
the notices “will be sent by
recorded delivery”.
9 6 July 2001 unreported.
10 It is true that neither Forms E or
F will form the foundation for
the action (unlike the notice in
Kane or, for example, a calling-up
notice) but it is submitted that
the decision in Kane confirms
that, even for these forms, a
creditor may not choose a
method of service which is not
provided for in the Act.
11 It is certainly not appropriate to
proceed directly to sheriff
officer without first attempting
recorded delivery service,
standing the wording of
ss.19A(2) and 24(4) of the
1970 Act and s.4(4) of the
2001 Act.
12 see Maher & Cusine,The Law
and Practice of Diligence, (1st
ed., 1990), para. 12-18 citing
Fairbairn v Cockburn’s Trustees
1878 15 S.L.R. 705, though in
that case, only nominal damages
were awarded in a situation
where a party had been ejected
from premises under illegal
warrant.
13 Form O5A of the Ordinary
Cause Rules in relation to
actions under s.24 of the 1970
Act and Form 6B of the
Summary Applications Rules in
relation to actions under the
1894 Act or summary
applications under the 1970
Act, in terms of Rules 34.10(1)
of the Ordinary Cause Rules
and Rule 3.4.1 of the Summary
Applications Rules. If the
problem relates to a defect in a
notice of default, that may not
be fatal.
14 Macphail, Sheriff Court Practice
(2nd ed.), para. 6-04; Ordinary
Cause Rule 5.10; but
appearance in this context
means the lodging of a notice of
intention to defend: Cairney v
Bulloch 1994 S.L.T. (Sh. Ct.) 37.
Accordingly, this argument will
not be open to a creditor
where the applicant is simply
making an application for a
Section 2 Order.

Journal
Rights of Audience
AGE 47
CAREER Having trained at the former Glasgow firm of
Brown, Mair, Gemmell and Hislop, joined
McGrigor Donald as an assistant in 1977 before
being assumed as a partner at the age of 25.
Best known as a planning lawyer, he covers the
complete range of commercial cases from
intellectual property to professional negligence
and judicial review to construction.
FAMILY Married to Mary, also a solicitor, two daughters
Lindsay and Gillian.
May 2002 Volume 47 No 5 28
Breaking
the
mould
Scotland’s first solicitor advocate QC, Craig Connal,
tells Roger Mackenzie about the procedure –
and delays – leading to his appointment
News of Scotland’s first – and so far only - solicitor advocate QC may not
have been welcomed in some quarters, but Craig Connal’s recent
appointment marks the natural conclusion to a process which began in
1990 when extended rights of audience were granted for solicitor
advocates.
For a procedure that caused so much angst – speculation suggests that the
appointments were delayed by strong resistance from the Faculty to the
principle of solicitor QCs - Craig Connal doesn’t expect it to make a
fundamental difference to his career, viewing it more as an “honour”.
“My understanding is that the Bar as a body were very much opposed to
the idea, arguing that the title was their exclusive province, notwithstanding
that a number of solicitors had been appointed QCs in England. We,
however, understood that the principle had been accepted when Rights of
Audience were first introduced back in the early 90s.
“I have heard that their opposition is at least partly responsible – though the
change of Lord President was also a factor - for the delay in this list being
issued, which is equally unfortunate for the ten members of the Bar on the
list”, said Craig Connal.
“A number of top QCs, particularly on the civil side, have gone out of their
way to congratulate me. I suspect there are some I know or with whom I
have worked who have specifically not done so. Others have offered
personal congratulations but said they are opposed in principle, which is a
perfectly tenable position.

“Some pleasure has been
expressed that the appointment
went to someone who is actually
at the coalface, or as one Junior
said to me, someone who has
been “up here taking the flak like
the rest of us.”
What was the procedure for
becoming a QC?
“There was no real indication of
what one was meant to do. I was
staring rather blindly into the dark.
Essentially it’s a case of applying to
the Lord President with an outline
of one’s history, professional
experience and names of referees.
“ I assume that previously it was not
a very formal process. As the Bar is
a rather tight knit community the
Dean will know all his members,
whereas the Law Society didn’t feel
able to offer a substantive view on
my merits or otherwise.”
So what difference will QC status
make to him and his practice?
“In a practical sense little changes.
I’m happy to accept work from
wherever it comes if it’s within my
areas of interest. I would anticipate
most of my cases would continue
to come from McGrigor Donald
work, but like other solicitor
advocates, if matters come from
elsewhere I’m happy to take them
on.
“I’m not anticipating in the short
term that it will make a huge
difference. It is difficult to know
ultimately how client decisions are
made! My best guess is that at one
end of the spectrum of clients are
organisations who aren’t familiar
with litigation but have heard of
QCs, think the label is a special thing
and think they should employ one.
At the more sophisticated end of
the legal market, eg. those who have
been operating in the English
litigation field, clients may well take
the tag as an external guarantee of
a certain standing in the profession.
In essence it’s a badge of quality for
the firm’s practice.”
For solicitor advocacy in Scotland,
it’s something of a fillip. Welcoming
the appointment, President of the
Society of Solicitor Advocates, Frank
Maguire said: “This appointment
gives a good message that what
matters to the public and our
clients is advocacy. This is the first,
but there will be more. There are
high standards of advocacy across
the board, many of whom happen
to be solicitors.”
Clients may well take
the tag as an
external guarantee of
a certain standing in
the profession
Craig Connal said: “I hope it might
encourage people who are
wondering about solicitor advocacy
that it is possible to achieve this
accolade.”
There has been a suggestion that
the Faculty lacks specialists and that
in comparison to their counterparts
in England, there simply isn’t the
choice available when instructing
counsel – could more solicitor
advocate QCs rectify that problem?
“The size of the Bar in Scotland
doesn’t sustain the sort of
specialisation that exists in England.
At the civil bar, there are relatively
few QCs at the top covering the
range of commercial work. To
specialise very closely there needs
to be enough work to justify that.
For example, it is arguable there is
now a need for specialists in
intellectual property, but five years
ago that wouldn’t have been the
case and very narrow specialisation
brings its own risks.”
The natural next step would be
The Bench. Does Connal harbour
ambitions in that direction?
“My personal view is that’s about
ten steps too far for the
establishment to contemplate.
Naturally like most people I would
be very flattered to be asked to
become a Court of Session judge
but my guess is that while a Solicitor
Advocate will achieve that post, it
will be after my time.
“In the future, when there are a
number of senior solicitor
advocates, one will come through
to become a judge. If you ask me
where I’d like to be in ten years’
time, it would be on my feet in the
House of Lords defending a case I’d
won in the Inner House.”
Journal
Rights of Audience
e:
roger@connectcommunications.co.uk
29 May 2002 Volume 47 No 5

Journal
Civil Courts
May 2002 Volume 47 No 5 30
Karl Construction
strikes again
Sheriff Lindsay Foulis examines issues including minutes of tender and family actions
in his ongoing series rounding-up recent key decisions of the civil courts
Since the last article Marsh v Marsh has been reported
at 2002 SCLR 84, Bain v Bain at 2002 SCLR 152,
McDougall v Tawse at 2002 SCLR 160, and Semple
Fraser v Quayle at 2002 SLT (Sh Ct) 33
Jurisdiction
Following Marsh v Marsh 2002 SCLR 84, another
decision appears on the question of domicile. In
Reddington v Riach’s Exr 2002 GWD 7- 212, Lord
Clarke decided that a man was domiciled in England,
having acquired an English domicile of choice. He had
been born in Scotland. He had travelled extensively
before retiring to Scotland thirty years ago. Fourteen
years later he had moved to England on health grounds.
Some members of his wife’s family moved there. He
stated that he would not move again and bought a
burial plot in England. His wife died there in 1987. She
was buried there.Whilst he was proud of being Scots he
had only visited Scotland on two occasions since 1978.
He never stated that he wished to return to Scotland.
There was further evidence that he operated a bank
account in Scotland and had his legal advisers in
Scotland. In 1996 he executed a will in which he
declared he was of Scottish domicile but also declared
that he wished to be buried beside his wife. His
Lordship decided that the decisive factors were his
intention not to move again and his actings which were
consistent with that intention. He did not return after his
wife’s death. His intention was to remain in England and
accordingly was domiciled there. The declaration as to
domicile in the will was inconclusive and in any event
simply reflected previous similar declarations inserted in
previous wills.
Caveats
Whilst the decision of K and F Applicants 2002 SLT (Sh
Ct) 38 relates to whether a caveat can be competently
lodged in relation to potential applications for a Child
Protection Order, Sheriff Principal Nicholson, in holding
that the lodging of a caveat was incompetent, made
certain interesting observations as to the use of caveats.
He indicated that to enable caveats to be competently
lodged there required statutory provision to be in place.
As a result of the harmonisation between the Sheriff
Court and Court of Session rules, caveats could only be
competently lodged in circumstances specified in the
rules. The Child Protection Order, whilst a protective
measure, was, once granted, complete. It accordingly
was not analogous with an interim order. Ordinary
Cause Rule 4 specified orders to be granted prior to a
notice of intention to defend being lodged. Such notices
had no place in applications for a Child Protection
Order.The European Convention of Human Rights was
of no assistance as it did not require a person to have
the opportunity to present his argument on every
occasion the matter was before a Court. Provided a
hearing within a reasonable time was guaranteed.
Diligence on the Dependence
It will come as no surprise that Lord Drummond Young’s
decision in Karl Construction Ltd v Palisade Properties
plc has been cited in support of a motion to recall an
arrestment on the dependence. This happened in
Dunfermline Sheriff Court recently in Fab-Tek
Engineering Ltd v Carillon Construction Ltd 2002
GWD 13 – 390. In granting the motion for recall of the
arrestment Sheriff Forbes saw no reason to differentiate
between inhibition and arrestment on the dependence.
Accordingly the same factors which were relied upon by
Lord Drummond Young in Karl Construction applied to
arrestments.The Ordinary Cause Rules and in particular
Rules 3.3, 3.5, 5.1.1, and 5.1.3 could be read in such a
way that a sheriff had discretion in whether he granted
a warrant to arrest on the dependence if it was sought.
In those circumstances, the Court required in terms of
section 6 of the Human Rights Act 1998 not to act in a
way incompatible with a right set out in the European
Convention of Human Rights. Sheriff Forbes further
indicated that in considering a motion to recall an
arrestment on the dependence a Court again was
required to avoid acting in a way incompatible with a
convention right. Accordingly in considering such a
motion it fell on the arresting creditor to justify the
propriety of the diligence.

Minutes of Tender
Manson v Skinner has appeared
previously in these articles as the
decisions of Sheriff Horsburgh and
Sheriff Principal Nicholson have
been reached. In this case the
Defender lodged a tender with the
defences. The case went to proof
and after the judgment was issued,
the tender was beaten but only by
the operation of time by reference
of the interest accruing on the
principal sum. The amount
tendered was greater than the
principal sum and any interest,
which had accrued thereon at the
time the tender had been lodged.
The Second Division of the Inner
House restored Sheriff Horsburgh’s
decision finding the Pursuer entitled
to the expenses up to the date of
the tender but liable to the
Defender thereafter as the refusal
of the tender had unnecessarily
prolonged the proceedings. The
Inner House decision appears at
2002 SLT 448.
Family Actions
In McGurran v McGurran 2002
GWD 11- 337 the Pursuer sought
inter alia a non harassment order.
The Pursuer had already been
granted permanent interdict in
previous proceedings.The Defender
argued that the present proceedings
for a non harassment order were
incompetent having regard to the
terms of section 8(5)(b)(ii) 0f the
Protection from Harassment Act
1997 in light of the fact that an
interdict had been granted in
previous proceedings. The Inner
House came to the conclusion that
the interdict must have been
granted in the same process in
which the non harassment order is
sought. In justifying their decision,
Lord Caplan, in giving the decision
of the division, referred to the word
‘subjected’ in the proviso to section
8(5)(b)(ii).‘Subjected to an interdict’
is different from ‘subject to an
interdict’. The former relates to the
Court, which by court order
subjects a person to the terms of
the interdict. Accordingly the
section relates to the judge making
the order in the non harassment
process not a previous process. If
the section was not construed in
that way, it would mean that a
person who held an interdict from a
prior process could not apply for a
non harassment order. This might
arise notwithstanding the fact that
Subjected to an
interdict’ is
different from
‘subject to an
interdict
the behaviour of the other party
had deteriorated since the granting
of the interdict to such an extent
that a non harassment order would
then be appropriate. It was further
indicated that a non harassment
order ad interim was incompetent.
Further, in deciding whether a non
harassment order was required,
regard would be had to what effect
the interdict had on the other party.
Once again the usual caveat
accompanies the decisions noted
above. I would also simply remind
practitioners that by the time of the
publication of the next article the
new Summary Cause and Small
Claims rules will have come into
effect. At the time of writing this
article these can be found in the
HMSO web site under legislation.
A very helpful article on these rules
by Sheriff Alastair Stewart appeared
in Issue 11 2002 SLT and in April’s
issue of the Journal. It seems to me
that the new rules relating to the
first calling of the Summary Cause
represent a major change to the
present procedure. It seems to me
from reading the article that the
first calling is similar to an Options
Hearing. However, the sheriff has
additional powers to ‘seek to
negotiate and secure settlement of
an action’. Further, if the Sheriff
considers that the claim or defence
is not soundly based in law in whole
or part, then having heard parties,
the sheriff may grant decree. In
those circumstances, the agent who
appears at a first calling has to be
familiar with the case. As Sheriff
Stewart concludes, a greater
amount of advance preparation will
be required. Is this likely to happen
if the jurisdictional limits remain at
the present levels? In any event is it
not appropriate for the limits to be
increased? In 1976 when Summary
Causes first came into operation
the upper limit was £500. If a similar
inflation factor was applied to that
figure as is often applied to
previous solatium awards, the
present upper limit would be
considerably higher than £1500.
Should cases valued at a little over
£1500 have an automatic right to
be litigated in the Court of Session?
Further, presumably the table of
fees as they relate to Summary
Cause actions are being looked at
as it appears that in the same way
Ordinary actions became fronted
loaded after 1st January 1993, so
Summary Causes will fall into line.
e:
sheriff.LDRFoulis@scotcourts.gov.uk
Journal
Civil Courts
31 May 2002 Volume 47 No 5

Journal
Interview
Lure of the law
May 2002 Volume 47 No 5 32
still strong
Duncan Hamilton MSP tells Roger Mackenzie
why the call of the law was too strong to resist
While it’s not really the done thing to discuss someone’s salary, in Duncan
Hamilton’s case it’s an unavoidable discussion point following on from his
recent decision not to stand at next year’s elections for Holyrood in order
to pursue a career in law.
And as it’s a matter of public record, broaching the subject isn’t entirely
impertinent. Let’s face it, who didn’t ask “Why?” when they heard of the
28-year-old’s decision to sacrifice an annual salary of £48,228 (topped up by
some lavish expenses) to return to university and undertake the Diploma
in Legal Practice, followed by two years employed at the still notoriously low
trainee salary.
It’s either a shocking indictment of the Scottish Parliament or striking
testimony to the strange lure that the legal profession can still have.
“It’s going to be very tough and I will have to live extremely frugally, but if
anyone was in any doubt about my professional commitment to becoming
a lawyer, they need only look at the financial hit I’ll be taking. I’m not
someone who is massively motivated by money, I’m more interested in
having a fulfilling and satisfying career and for that reason I think the right
move is to go into law”, said Hamilton.
Still, Hamilton’s record of prodigious achievement suggests it’s unlikely he’ll
live in penury for long – and a career in Opposition probably has limited
appeal.
“It will take a while for my career to get up and running, and I’m under no
illusions about how difficult it will be. It’s not, as some have suggested, a
desire to chase money. In the long-term I wouldn’t rule out going to the Bar,
but at the moment I’m just focused on trying to kick-start a legal career.”
Fiscal considerations aside, how did he arrive at what is a fairly momentous
personal decision?
“I have been through a process of trying to establish what is the best option
for the future and establish more of a real life base as opposed to the
institutionalised, slightly unreal world of the Scottish Parliament. In doing that
I’ve had a long-term attraction to the law, which is why I did the two-year
LLB at Edinburgh after graduating from Glasgow. It was always my intention
to go back to the law at some stage.The advice I have taken from friends
and colleagues is that a legal career is still one that has dignity and great
opportunity.

“Back in 1999 when I was elected
as the Parliament’s youngest
member it was impossible to say
when the time would be right to
pursue a legal career. My decision at
this stage is as much to do with
election cycles as anything else. At
29, I will still be at a reasonable age
to pursue a career in law, whereas
at the next election it would be
slightly less appealing.
“I have gone through a great deal of
soul searching. I know people would
imagine politicians don’t have souls,
but I’ve discovered one and having
searched it I realised that the
Parliament is through the dangerous
first period and is reasonably
entrenched in public life.”
Yet it still doesn’t say much for an
institution that has hardly covered
itself in glory. Losing its youngest
member is hardly auspicious for an
improved second term.
“The Parliament’s a great deal
bigger than me. Hopefully by 2003 I
will have played my part in
establishing it and I will always be
very proud of being the youngest
member of the first Parliament.
Given that there is a massive
section of the population under the
age of 30 it was right that there was
some representation from people
like me who were in their mid to
late 20s. That has been a very
positive thing.
“There are plenty more people of
my age and indeed younger who
will want to come into Parliament.
The minute an MSP starts to
believe they are that important in
the grand scheme of things, that’s
the time to go.”
How have colleagues reacted to his
decision?
“Without any exception at all, there
has been a universal understanding
that this is the right move for me.
People are aware that I have had a
long-standing ambition and desire
to become a lawyer and it’s fair to
say that across the parties there is a
degree of jealousy from some that I
am still young enough to go and
start a new career. People in their
40s or with children probably can’t
afford to take the sort of drop in
income that I’m now facing.
“I’ve been very impressed with the
level of understanding and I can
honestly say I’ve had nothing but
support.”
At the risk of offering a situations
wanted advertisement gratis, what
can he bring to the profession from
his time as an MSP?
“I recognise that my political
background will have pros and cons
for potential employers, but
hopefully a few firms will find my
application attractive. One of the
things about being in parliament is
that you’re not allowed to have an
ego, and I will expect to do my fair
share of photocopying as a trainee.
I don’t detect any
great thirst on the
part of my colleagues
to learn more about
the legal profession
“There are more similarities
between politics and the law than
you would first imagine. Beyond the
obvious points of legislating and
presenting arguments, there’s my
experience of constituency
surgeries, dealing with people on a
one to one basis to try and take
their problem and solve it within
the legal framework.
“Without doubt I am better
equipped now to be a lawyer than
if I had gone straight from university,
though I imagine in may ways it will
be a painful process to go back and
be a student again and then
become a trainee.”
In fact, discounting his time as an
MSP, his career path marks a
reversion to the tradition of doing
law as a second degree.
“Most senior lawyers I talk to who
have come to law later tell me they
have the understanding and
maturity to deal with individuals and
a real thirst for the law.”
For Hamilton, Parliament’s lowest
moment came with the fox hunting
Bill. Contrary to the SNP party
line, he voted against the
legislation.
“It’s the worst piece of legislation
I’ve ever seen. That was generally
reckoned to be a very black day
for Parliament and showed it up to
be an immature institution that
didn’t properly understand the
legislative process and the
implications of what it was doing.
That was a damaging and
depressing day for Parliament and
one which made the case for a
revising chamber.”
He suggests it was symptomatic of
the deficit of understanding his
fellow parliamentarians have of the
legislative process.
“Most MSPs don’t have a sufficient
grasp of the law. Outside of the
Justice Committees, there’s a lack of
appreciation of how courts will
interpret legislation that is passed
and, perhaps more worryingly, I
don’t detect any great thirst on the
part of my colleagues to learn more
about the legal profession.”
Cynics might view his change of
career path as testimony to
thwarted ambition, the heir
apparent to Alex Salmond being
marginalised by the new
leadership regime. Not so, insists
Hamilton.
“I’m extremely close to John
Swinney, we work closely together
on First Minister’s questions. This
decision is nothing to do with any
individual other than Duncan
Hamilton. It’s an entirely personal
and positive decision.”
For now at least, he’s definitely still a
politician.
Journal
Interview
e:
roger@connectcommunications.co.uk
33 May 2002 Volume 47 No 5

Journal
New Rules
More preparation for
Third party procedure
Under the new rules a form of third
party procedure is made
competent in summary causes. The
rules governing this are modelled
on those in the Ordinary Cause
Rules. However, an application for
service of a third party notice
normally requires to be made at the
time when the defender lodges a
form of response. It can be made
later only with leave of the sheriff
on cause shown.This is understood
to be with a view to focusing all of
the issues in the case at the initial
hearing.
Decree by default
Much frustration has been caused
by the provision of the present rule
28 which requires the fixing of a
peremptory diet if a party is in
default. The new rules are more
robust. The sheriff may now grant
decree by default if a party fails to
appear at a hearing (other than the
hearing of an incidental application)
where required to do so. He is not
obliged to grant decree but has a
discretion in the matter. In the case
of a failure to implement an order
of the court after a proof has been
fixed, the sheriff has again a
discretion whether or not to grant
decree by default, but in this case he
must give the offending party an
opportunity to be heard.
Proof
The provisions in the new rules for
proof are relatively little changed
from those in the present rules.
Perhaps the most significant
practitioners and sheriffs
Concluding his guide to the news summary cause rules, Sheriff Alastair Stewart
looks at actions of damages for personal injury and small claims
innovation is that the sheriff is given
power, either of his own accord or
on the motion of a party, to order
that proof on liability or some other
specified issue should be heard
separately from proof on any other
issue.This is likely to be of particular
importance in actions of damages
for personal injury.
The new rules also contain
provisions for an exchange of lists of
witnesses similar to those in the
Ordinary Cause Rules.
Regarding productions there is a
new rule providing that a party
Party lodging
productions must
send a list thereof to
every other party
lodging productions must send a list
thereof to every other party and
must also send a copy of each
production to every other party
unless it is not practicable to do so.
It is understood that these
disclosure provisions are intended
to encourage and facilitate
settlement. A further new provision
is that a copy of each production
for the use of the sheriff must be
lodged with the sheriff clerk not
later than 48 hours before the diet
of proof.
Actions with special rules
It is not intended to go into any
detail about actions with special
rules other than actions of damages
for personal injury which are dealt
with below.
Multiplepoindings and actions of
count reckoning and payment often
appear to cause dread in the heart
of the practitioner (and of some
sheriffs too), but the summary
cause rules governing them are
clearly expressed and, if followed
accurately, should cause no difficulty.
The rules for actions for recovery of
possession of heritable property
are little changed. It may be of some
importance to note that the
requirement for a written defence
in the form of response applies to
such actions as well as any other.
Those advising defenders should
bear in mind that a defence stated
as “unreasonable to grant decree of
ejection” without further
specification is unlikely to meet with
a sympathetic reception by the
sheriff.
Actions of damages for
personal injury
In the case of an action of damages
for personal injury (or in respect of
the death of a person from
personal injury) the actual form of
the statement of claim is specified. It
is set out in very much the same
way as would be the
condescendence in a standard
reparation ordinary cause. It is
specifically provided that the
statement of claim must contain a
concise statement of the grounds of
action and the facts relied upon to
establish the claim. The pursuer’s
date of birth and, where applicable,
his National Insurance number, must
35 May 2002 Volume 47 No 5

Journal
New Rules
May 2002 Volume 47 No 5 36
be stated. In the paragraph of the statement of claim
dealing with any treatment received by the pursuer (or
the deceased in the case of a death claim) the name of
every medical practitioner by whom and every hospital
or other institution in which such treatment was given
must be stated.
With the summons must be lodged a statement of
valuation of claim. The form for this provides for
different heads of damages being stated together with
details of what interest is being claimed.The statement
must also include a list of supporting documents, and
there must be lodged along with the summons all
medical reports available to the pursuer on which he
may rely. If no medical report is lodged the pursuer must
specifically state that there is no such report.
The summons may include a specification of documents
for which a form is provided in the rules. This form
includes the standard documents called for in a
reparation action.
The copy summons served on the defender must be
accompanied by a copy of the statement of valuation of
claim. The copy summons contains a different form of
response from that in other actions for payment. This
form of response gives the defender the opportunity to
answer the pursuer’s claim in detail, including the facts of
the case and the heads of damage.
If the defender lodges a form of response the action
continues as described above for other summary
causes. If the summons contains a specification of
documents, the sheriff clerk makes an order granting
commission and diligence when the form of response is
lodged. If the defender objects to the specification he
must lodge an incidental application to that effect before
the return day. This will then be determined on the
calling date.
Other rules applying to actions of damages for personal
injuries (e.g. provisional damages and intimation to
connected persons) are similar to those for ordinary
causes.
SMALL CLAIMS
The new Small Claim Rules provide for less of a
departure from the present procedures than is the case
with summary causes. The most notable difference is
that there is only one body of rules for all small claims
and not, as under the present provisions, separate rules
for actions for payment of money only and for other
actions. It is also implicit in the new rules that a case
should be disposed of at the first hearing if at all
possible.
As at present a party may be represented by an
authorised lay representative throughout the whole
proceedings. It is clearly envisaged in the rules that in
many, if not most, small claims, parties will not be
represented by any legally trained person.
Summons, copy summons, claim, statement of claim and
form of response
The new small claim provisions for the summons, claim
and statement of claim are broadly similar to those for
summary causes and call for no comment.
There are two forms of copy summons which may be
served on a defender: one for actions for payment of
money in which the defender may apply for a time to
pay direction or time order; and one for all other actions.
As in the case of a summary cause, the copy summons
contains a form of response. However, the form of
response does not provide that a defender must state
his defence in writing. Instead, it provides that he should
state an intention to defend the action, in which case he
must return the form of response to the sheriff clerk by
the return day and must then attend court on the
calling date.
The new small claim rules provide that a defender may
state a counterclaim, and this is of course a significant
change from the existing procedure. A defender who
wishes to state a counterclaim may do so either in
writing in the form of response or orally at the hearing
of the case on the calling date.
Undefended action
The small claim provisions for undefended actions are
broadly similar to those for summary causes.
Recall of decree
Again the small claim provisions are essentially the same
as those for summary causes.
The Hearing
If a defender lodges a form of response the case must
call in court for a hearing on the calling date.
The rules provide that any hearing is to be conducted
“as informally as the circumstances of the claim permit”.
The procedure to be adopted is such as the sheriff
considers to be fair, best suited to clarification and
determination of the issues before him, and which gives
each party a sufficient opportunity to present his case.
This is in conformity with the policy of making small
claim procedures as accessible and user-friendly as
possible to those who are not legally qualified.
As in the case of a summary cause, the sheriff is
required first to ascertain the factual and legal basis of
the claim and any defence and to seek to negotiate a

settlement between the parties. If that attempt
fails he must identify and note on the summons
the disputed issues of fact and law and any facts
which are agreed. He should then, if possible at
that stage, reach a decision on the basis of the
information before him. This procedure will
almost certainly have implications for the amount
of time which will require to be provided in the
court programme for the initial hearing in a
disputed small claim.
If the dispute cannot be resolved without the
leading of evidence the sheriff must fix a further
hearing which is somewhat confusingly referred
to in the rules as a “hearing on evidence” rather
than a proof. In that event, the sheriff may indicate
what matters require to be proved and give
guidance to the parties on the nature of the
evidence to be led.
Third party procedure
There is no provision in the Small Claim Rules for
third party procedure.
Decree by default
The small claim provisions for decree by default
are similar to those in summary causes.
Hearing on evidence (proof)
Before he begins to hear evidence the sheriff
must explain to the parties the form of
procedure which he intends to adopt, bearing in
mind the circumstances of each party and
whether (and to what extent) a party is
represented. He must, if he considers it necessary
for the fair conduct of the proceedings, explain
any legal terms or expressions which are used.
Evidence will normally be given on oath or
affirmation, but the sheriff may dispense with that
requirement if “it appears reasonable to do so”.
The rules give no guidance as to the
circumstances in which such a dispensation might
be granted.
The rules specifically provide that, in order to
assist resolution of the disputed issues of fact, a
sheriff may himself put questions to parties and
witnesses.This is simply giving formal recognition
to a practice which many sheriffs have adopted
since the introduction of small claims.
The Small Claim Rules, unlike the Summary
Cause Rules, make no specific provision for the
sheriff to hear submissions from parties at the
conclusion of the evidence. In practice, if parties
are legally represented it is probable that
submissions will be allowed – indeed encouraged.
In the absence of legal representation, a different
view may be taken.
CONCLUSION
As has, I hope, been demonstrated, the new rules,
especially those for summary causes, contain
many innovations, most of them improvements
Journal
New Rules
on the existing provisions. What is reasonably
clear is that the new rules will require a greater
amount of advanced preparation by the
practitioner than under the present rules,
especially in the case of summary cause actions of
damages for personal injury.
The new rules also envisage the sheriff having to
do more preparation before a summary cause
court. It is probable that a good deal more time
will have to be spent with each defended action
on the calling date than is the case at present.The
implications for court programming, at least in the
busier courts, may be quite significant.
The Judicial Studies Committee is taking steps to
ensure that sheriffs will receive training in the
operation of the new rules. It is to be hoped that
the Law Society and local faculties will take similar
steps for solicitors. I have no doubt that
organisations such as the Citizens Advice Bureaux
will have training sessions for their volunteers
who are likely to act as authorised lay
representatives. Unfortunately, similar steps
cannot be taken for party litigants, and they, with
the new procedures as with the present, will have
to continue to undergo in-service training from
the sheriff as the case proceeds! However,
updated versions of the information leaflets for
users of both procedures are to be published,
which will no doubt be of considerable assistance.
37 May 2002 Volume 47 No 5

Journal
President
The
Preston
front
Roger Mackenzie finds that a light-hearted approach
masks the serious agenda of new Society President David Preston.
May 2002 Volume 47 No 5 38
To understand the understated approach and dry wit of
new President David Preston, it’s probably sufficient to
reveal the philosophy which he hopes will see him
through his presidential year.
“I don’t want to achieve immortality through work, I
would rather achieve it by not dying”.
He attributes the quote to Woody Allen, but turning 50
soon and with a hazardous road from Oban to
Edinburgh to drive on a frequent basis, there may, as in
much he says, be a hint of seriousness beneath the
mirth.
It’s no surprise then that he won’t commence with a
grand plan. “It’s very easy for someone coming into this
job to be deluded into thinking they are going to be able
to change the world.You have to try and identify some
priorities and then narrow them down to try and get
some sort of message over, both in relation to the
Portrait by Austin Lafferty
relevance of the Society to the profession in a narrower
sense and its wider relevance to the general public.”
For the incoming President, one of his main priorities
will be to revisit what it actually means to be a solicitor.
“There are many different providers in the marketplace
of the sort of services that solicitors provide and we’ve
got to focus on comparing what a solicitor can provide
on the high street with mortgage brokers, estate agents
and claims companies. I firmly believe there is an added
value that the badge of solicitor can deliver to the public.
“There are the more obvious benefits – such as public
protection from the indemnity policy and Guarantee
Fund – but the added value has to be the way solicitors
perceive people’s problems and needs and how they go
about resolving and fulfilling them.
“That solicitors are different from other professions was
underlined and underscored by the decision in the

Nova case, which showed that in
comparison to accountants there
are different values and principles
that lawyers must adhere to, not
least of which is the independence
of advice and avoiding conflict of
interest situations.
“Competition in some quarters is
regarded as the master over all and
Nova has shown that what may on
the face of it appear to be anti
competitive can be in fact in the
public interest. It re-emphasises that
we must always look at what we do
from the public interest as well as
the interests of the profession.”
Nevertheless the Society’s
principled stand against MDPs may
be undermined if their counterparts
in England go down that route. As
Alan Paterson suggested in last
month’s Journal, the potential for
problems is obvious if England
embraces MDPs and they are then
linked to Scottish firms through
multi national partnerships.
Could the Law Society of Scotland
resist the tide in those
circumstances?
“If England went down the MDPs
route, we would continue to resist
based on the principled argument
we have set out.We apply the same
argument to the so-called Tesco
Law. My personal view is that there
are too many threats to the
independence of the profession.
Independence exists without the
need for regulation. Therefore to
have to introduce regulation to
maintain that independence would
be daft.”
At its most extreme, the
importance of independence is
clearly illustrated by recent events
in Zimbabwe, said Preston.
“I met the President of the
Zimbabwe Law Society and was
impressed by the resolve of his
members to stand up for their
clients against what they perceived
as oppression, despite personal
threats to them and their families. It
made me realise how comparatively
comfortable we are here and that
even in the 21st century we must
guard our core values.”
His laid-back approach makes it
seem unlikely he is the kind of
President that would torture
himself with soul searching about
where he and the Society fit into
the modern profession – but his
relaxed persona may be misleading.
“The Society has important
functions to play in maintaining the
values of solicitors, and in regulating
the profession, but it is also there to
provide support to practitioners,
offering help, guidance and services
to the profession whilst always
retaining the competitive nature of
the individual firms and practices
which make up the profession.”
Coming from a three partner firm
can he relate to the challenges
faced by the large city firms?
“In the 21st century, the Society has
to be relevant to all of its members
and I intend to focus on that. Some
of the larger corporate firms have
representation on Council and I
would like to see their number
increase.”
Everybody wants
to make progress,
it’s change they
don’t like
Are the firms interested and can
they afford to lose top fee-earners
for long periods? It does seem
something of a paradox that firms
with apparently the greatest
resources can least afford to let
partners devote time to Society
business.
“I just want to make sure that there
is balanced representation on
Council. If there are any issues to
address with the larger firms and
their representation on Council
then I will be happy to do so. I
would have thought that large firms
would find it comparatively easier
to cover for the time commitments
of a Council Member but that may
not be so with pressures on
individual departments or
chargeable hours targets.”
It might be expected that his
partners at Hosack & Sutherland
would resent carrying the practice
in his absence. Not so, says Preston.
“My partners are very supportive.
It’s an accolade for my firm and the
town of Oban. It helps demonstrate
that the profession is very active in
the town and Argyll generally.”
Still, the travelling schedule from
Oban must be exhausting. “I think
this is the most distant place a
President has come from, but I have
been travelling down for ten years
and have built up a system through
the support I have in the office, and
with e-mail and mobile phones I can
keep in regular contact both with
the office and with clients.”
Martin McAllister’s Presidency was
dominated by the Justice 1
Committee’s inquiry into the
regulation of the legal profession.
That seems set to loom large in the
early months of David Preston’s
tenure also.
“Justice 1 is going to report this year
and one of the things coming out of
it that we are going to have to
address is that perceptions can
form opinions. If the perception and
reality of the profession are too far
apart, people can form opinions
that are way off beam. Our job is to
make sure perception and reality
are as close as they can be.
“Part of that will be to focus on
what the profession has in
common. It’s not just solicitors but
the profession as a whole that
comes in for criticism. If we examine
what the different branches of the
profession have in common rather
than the differences then progress
can be achieved. Everybody wants
to make progress, it’s change they
don’t like.”
How would he encapsulate the
David Preston approach?
“I tend to approach things from an
inclusive point of view and prefer
structures that are built from the
bottom up rather than the top down.
I would hope therefore to bring a
gentle hand to the tiller and try to
see things from the lighter side.”
That light-hearted approach which
can belie his drive and commitment
is evidenced by a bet with his
predecessor. If he puts on weight
over the year under the deluge of
dinners he will attend, he has to pay
£300 to an organisation – which
shall remain nameless – that it
would pain him to assist. He’ll be
working hard to ensure the scales
don’t betray him next May. “I hope
to achieve the balance of taking
serious issues seriously but keeping
a healthy dose of perspective and
humour to hand.”
Journal
President
e:
roger@connectcommunications.co.uk
39 May 2002 Volume 47 No 5

Journal
Websites
www.scottishlaw.org.uk
The predecessor of this site, Scotslawonline, was
first reviewed in these pages nearly two years ago.
There is little left of that site now, not even the
name. However, the identity of the indefatigable
author remains, Kevin Crombie, an independent
pioneer in Scottish legal websites. So it’s worth
having another look to see whether the aim of the
site, which is to be “the very first place that
anyone with an interest in Scots Law would visit
…on the internet” has been realised. To a large
extent it has. Its home page would be a good
candidate for the default home page of your
browser if you use the web a lot for legal stuff.
Thankfully, the site has now eschewed the use of
fiddly graphics and most other irritating gimicky
stuff (except for pop-up banners: I suppose the
site has to be paid for somehow). The
uncomplicated, simply-designed home page is
Speed ◆◆◆◆
Usefulness to practitioners ◆◆◆◆◆
www.lawreports.co.uk
this is another of the plain vanilla
high-content sites that should find
their way to the top 10 basic sites
of any lawyer interested in what’s
moving in the courts. This is the
website of the Incorporated
Council of Law Reporting which is
responsible for publishing WLR, the
Law Reports and ICR. The mission
of the ICLR is to report those cases
that “really matter”. Much of the
website is devoted, as one would
Advocate Derek O’Carroll picks out a likely candidate
for your home page if you undertake
a lot of legal research online
easy to navigate with the principal sections of the
site accessible from columns on both sides of the
page and a straightforward introduction to the
site down the middle.The author has packed the
site with all sorts of resources.The basic nuts and
bolts stuff (caselaw, legislation, government sites,
other legal links) are found in the first two
sections. The A to Z of law is particularly useful
with annotated links to websites listed under
categories (e.g. A is for Animals, F is for Family and
Z is for Bored.com ). Although billed as the A to
Z of Scots law, that is a little misleading as the sites
cover law from many jurisdictions. Unfortunately,
there are not enough Scots law sites to fill an A to
Z.The site works hard at interactivity so there are
loads of bulletin boards. Most, unfortunately, are
not well used by the public and lawyers which is a
great pity since such features are potentially very
productive.The site also works hard at appealing
to other interests such as law students and
Usefulness to non-practitioners ◆◆◆
Site design ◆◆◆◆
expect, to the promotion of its
wares. But there is more. Usefully,
the site lists all the cases reported in
the current and previous issue of
WLR together with a brief
summary of the content.
Unfortunately, although the most
recent cases reported in ICR and
the Law Reports are also listed, they
contain neither a summary nor a
link to the rubric and headnote. Pity.
It can’t be that difficult especially
since the Law Reports contain a
site of the month:
selection of WLR cases.The best bit
I save till last: hope you are still here.
The Daily Law Notes are a “precise
and accurate summary” of those
cases which will eventually end up in
WLR. Speed is the thing, with the
cases finding their way onto the
website within 24 hours or so of
the judgments being handed down.
The index is a little primitive in web
terms.You can search by court (with
the cases broken down by subject
area), or by date. There is a useful
Derek O’Carroll welcomes comments on the reviews and suggestions for sites to review
May 2002 Volume 47 No 5 40
trainees with news, journal and discussion sites in
these areas.There are fun things to do too: try the
xxx..archive in the Shockwave files section and see
if your mental age is old enough to
continue…(The things a reviewer has to do).The
new Intranet for lawyers is a smaller version of
the main site focusing on practical resources for
lawyers including ancillary tools (such as currency
converters, timetables, on-line forms etc.).
Although the site no longer advises when it was
last updated (a response to the previous review!)
the news section is updated daily and the rest
pretty frequently.The author of this site has put an
enormous amount of work into this ambitious
site.The more it is used, the better it’ll be, which
must be to the advantage of all lawyers.
Subjective Rating (where 5* is excellent and 1*
is poor and no stars indicate that that
category has not been assessed)
Ease of use ◆◆◆◆◆
Updating frequency ◆◆◆◆
e:
summary of all cases in the current
and last week. If you only know the
name of the case, the index will not
help and there is no search function.
Still, it’s free and wonderfully clear,
being devoid of fancy web stuff.
Speed ◆◆◆◆
Usefulness to practitioners ◆◆◆◆
Usefulness to non-practitioners ◆
Site design ◆◆◆
Ease of use ◆◆◆◆◆
Updating Frequency ◆◆◆◆◆
jlsswebreview@blueyonder.co.uk

Finding,
Keeping,
Sending
Journal
IT
It’s becoming increasingly common for fee-earners to have computers on their desks.
Unfortunately, few firms bother spending much money on training lawyers how to use them properly.
Scott Cownie illustrates some common techniques in making Internet Explorer and Outlook talk to each other
Many primary materials are now
available on the Internet. The
Scottish Courts website at
www.scotcourts.gov.uk is one
example. Practically all Supreme
Court decisions and some Sheriff
Court decisions are published on it,
usually within a day or two, and
certainly sooner than printed case
reports. Being able to see decisions
as soon as they are issued is one
thing, but to get value out of it, you
need to know how to manipulate
the information. There is a slight
problem with the structure of the
scotcourts site, stemming from its
use of HTML frames to organise
the layout of the site. This makes
some processes less intuitive than
with other sites.There are, however,
some simple work-arounds, and
these may be worth learning as
they can be used to resolve the
frames problem which occurs in
several “official” sites.
Here’s how to:
■ Set the “Supreme Court
structured search” page as a
“favorite”.
■ Save particular cases to your
machine.
■ Attach the case to an e-mail.
Setting “favorites”
You’ll be familiar with the structure
of a typical website address, in this
example, www.scotcourts.gov.uk.
This address is associated with a
particular piece of space on a
server, a server being a computer
which is programmed to “serve” up
pages when requested by someone
like you through an Internet
browser, such as Internet Explorer.
The space contains a series of
pages, usually organised within a set
of directories. Later on, I’ll be
looking at an address within the
scotcourts site called
www.scotcourts.gov.uk/cgibin/Supreme.pl,
where
scotcourts.gov.uk is the space on
the server, cgi-bin is a directory
within that space and Supreme.pl is
a file within that directory. If this
seems abstract, think filing cabinet /
folder / letter.
It’s easy to set a particular site as a
“favorite” by clicking Favorites | Add
to Favorites… from the menu bar
at the top of the browser screen.
This pops up a dialog box, which
allows you to add that particular
page to your list of Favorites, and
you can then return to that page in
the future by clicking the favorites
icon in the browser to show your
list and then clicking the site title in
the list, saving you from having to
remember the address.
41 May 2002 Volume 47 No 5

Journal
IT
Opening a
target in a new
However, it’s
also possible
t o s e t
window is
particular
pages within
also useful
the site as
favorites,
which allows
you to “deep-link” directly to the page, and saves
you having to start at the front page and click
your way through the navigational elements of
the site. In this particular case, setting up a deeplink
directly to the Supreme Court structured
search page allows you to go directly to that page
and saves you having to trawl through four
intermediate pages. This is where the frames
problem arises. You need to know the page
address to set it as a favorite. The address
www.scotcourts.gov.uk is not actually a page, it’s
just a space which contains pages. By default,
when you type that address in, it loads a page
called index1.htm. Normally, as you click through
a site, you’ll see that the page address changes in
the address bar, and, if it does, you can save any
particular page as a favorite without any difficulty.
This doesn’t happen with scotcourts. You’ll see
that it initially loads a page called
www.scotcourts.gov.uk/index1.htm. Click through
the site to other pages, and you’ll see that the
address is always index1.htm. Accordingly, if you
try to set any page as a favorite, you will always
arrive at the opening page instead of a direct
deep link to the page you are interested in.This is
because the frames structure always initially loads
index1.htm which itself contains no substantive
contents, just instructions to split the screen into
a left hand frame containing a navigation menu,
and a right hand frame containing the substantive
contents.
To get round this, from the opening page of
scotcourts, find your way to the Supreme Courts
search page. As per figure one, the green bit on
the left is one page consisting of navigation
options and the right hand bit is the substantive
content. Both these pages are loaded into the
two separate frames set up by index1.htm. You
are always looking at index1.htm, even though its
contents may periodically change depending on
the navigation choices you make. Now, however,
instead of using the left mouse button to click on
the words “Structured Search”, click the right
mouse button. From the menu which appears,
click “Open in New Window”.This opens a new
instance of your browser, and, this time, instead of
loading index1.htm all over again, it loads just the
Supreme Courts structured search page, and
you’ll see that the address is now
May 2002 Volume 47 No 5 42
www.scotcourts.gov.uk/cgi-bin/Supreme.pl.This is
a particular page address which you normally
can’t see within a frames structure.You can now
add this page to favorites as described above.
Now, this may seem a little pointless, but it doesn’t
just save you having to click through from the
opening page each time you want to do a
Supreme Courts structured search. If you find a
case while still within the frames structure, and
want to save it to your machine, remember that
you are looking at index1.htm which just happens
to be showing that case at the time, and also the
green navigation menu on the left hand side. If you
try to save this case, you will just save index1.htm,
not the contents: basically, when you open up the
saved file, you will see nothing. However, if you
follow the procedures described, to allow you to
open the search page directly, any cases found will
be loaded directly, not within index1.htm, and you
can then save them directly. Despite the problems
with navigation, saving, bookmarking and printing,
which framesets give rise to, a surprising number
of sites insist on using them. Knowing that you can
right-click and open the destination in a new
window is a good work-around. Opening a target
in a new window is also useful when, say, you find
a list of resources on a page, such as the searchresults
within scotcourts, and want to work your
way through them without having to jump
backwards and forwards between the searchresults
and each case.You can right-click on each
case and open it in its own window.
If you take an interest in the development of your
own website, this line of source-code will place
these words “Add this page to Favorites” on your
page, and will call the Favorites dialog box when
clicked.
Add this page to Favorites
The thinking behind this is that there’s a school of
thought which says that if a user option is made
more explicit, users will be more likely to take it.
You might want to include this line on a page
which carries an article about an area of law
which is under review, with say, a by-line saying,
Figure 1
“The Scottish Executive has issued a consultation
paper on possible reforms in this area. Bookmark
this page here as we’ll be updating this page as
matters develop.” People may be more inclined to
come back and then instruct you, or they may not.
Saving cases to your machine
Well, let’s be frank about this: unless you’ve been
brave enough to ask your secretary what the
difference between “save” and “save as…” is,
you’re probably still printing cases out and then
dealing with them as you would any other form
of printed media. Here’s how to store them on
your machine, so that you can do whatever you
like with them later on.
Minimise other programs so that you have a clear
view of the computer’s “desktop”. Click the right
mouse button. From the menu which appears,
put the mouse over “New “, then from the submenu,
click “Folder”.A new folder appears on the
desktop. Give it an appropriate name, such as
“Cases” by right-clicking on it, and selecting
“Rename” from the menu which appears. This
sets up a folder for future use.
When you find a case you’re interested in you
can save it here. Say you’re in the Supreme
Courts search page, you’ve found a case and
need to save it. From the menu bar at the top of
the page, click “file | save as”.This opens a dialog
box. At the “Save in..” select menu at the top of
the box, find and click the “Cases” folder.The textarea
should fill up to show other files already in
that folder. At the “File Name” box, you can rename
the file to whatever you think appropriate.
At the “Save as Type” select menu, you can leave
the type as “Web page, complete”, but if the page
has lots of unnecessary pictures which you’re not
interested in, you can change the type to “Web
page, HTML only” to save just the words. Then
click “Save”.The file will now be in the folder.
To view it later, click or double-click it, depending
on the set-up of your machine. It should open in
Internet Explorer. You may wish to take a quote
out of the decision to put into a letter: put the
cursor at the start of the section you’re
interested in then press the left mouse button
down. Keeping it down, drag the cursor to the
end of the section, then release the button. The
section should now be highlighted blue. Put the
cursor over the blue section and right-click. From
the menu which appears, click “copy”. This puts
the section into a temporary storage area called
the “clipboard”. Go to the letter, or e-mail or
whatever, place the cursor at the appropriate
point, then right-click, and from the menu which
appears, click “paste”. The section should be
placed into the letter. (Incidentally, “Save” is used

to save changes to a previously saved item,
whereas “Save as…” is used to save for the first
time a new unsaved item, or, alternatively, save a
new instance of a previously saved item, that is, it
makes another copy of it.).
Attaching the case to an e-mail
Now you’ve got some cases saved, you may want
to send copies to the rest of your firm, so that
everyone is up to date and the firm doesn’t get
sued, or send them to the other side or to clients.
If you can do this by e-mail it saves you the
bother of printing out multiple copies.
It’s possible to attach the entire file, or indeed any
file on your machine, to an e-mail. The screenshot
at figure two used Outlook Express as the
mail client, but the same rules apply for most
clients. Start the e-mail in the usual way by
clicking “new mail”, then fill in the “mail to”,
“subject” and “body” fields as appropriate.
Then, click “Insert” from the menu bar at the top
of the mail-message. From the menu which
appears, click “File Attachment”. From the dialog
box which appears, hunt around in the “Look in”
select menu until you’ve found your “Cases”
folder. Click the file you’re interested in till its
name appears in the “File name” box, then click
the “Attach” button. In Outlook Express, another
field opens up beneath the “subject” field to show
that the file has been attached, but other clients
may show an icon in the body of the message to
show that the file has been attached. Clicking on
the icon will open the file. You can repeat this
process if you have more than one file to go.
There are other ways of attaching files. If you have
the Cases folder open, you can put the cursor
over the file, depress the left mouse button and
then physically drag the file over into the body of
the message.
Occasionally, you may want to send an entire
folder which contains several files. You can’t
directly attach a folder. In these circumstances,
you have two options. You can attach each file
from within the folder separately. Alternatively,
you can run the folder through a program called
WinZip which will recreate it as a new object
called a .zip file, which can be attached as a single
item. How to use WinZip is beyond the scope of
this article. If you don’t already have a copy of it,
go bother your IT department, as you will
inevitably receive a .zip file from someone if you
are now using e-mail, and will not be able to open
the file without it. If you start sending .zip files out,
you should note that your recipient may not have
a copy of WinZip with which to open the .zip file,
in which case they’ll probably phone you up and
tell you “that thing you sent me, there’s something
wrong with it”. If you pay for a registered version
of WinZip, it allows you to create a self-extracting
zip file which can be opened without a copy of
WinZip. However, it does this by packaging the
file as an executable, which means it is a selfcontained
program which can run without relying
on outside assistance. Your IT department will
rightly tell you that you should be very cautious
when you receive any executable attachments, as
executables can be computer viruses (it is an
executable if it has the file extension .exe). Your
clients may be reluctant to accept WinZip
executables.
When attaching a file, you should always
remember that different types of files are
associated with different programs, for example,
the cases I’ve mentioned in this article are written
in HTML, have a .htm extension and are
associated with Internet Explorer. If you send a
file which depends on a particular program, you
need to remember that the recipient may not
have that program and may be unable to read it.
To minimise the risk of this happening, you can
often simply copy’n’paste the text of the file into
the mail-message itself. It will lose it’s formatting
and some other characteristics but this is
sometimes the only option.
Journal
IT
Summary
These details may seem over-technical, but in the
recent past I have had several clients mailing me
.zip files, and writs scanned in as Jpegs. This will
become more common, and it will happen to
you, and your client will expect you to deal with
it as a matter of course. I appreciate that many of
you will regard much of this as “secretary stuff”. If
your firm has gone to the bother of getting your
desk online, you should explore the many ways
which you now have of getting information and
passing it around very quickly, without having
work sitting in a typing queue for three days.
Other possibilities start to present themselves,
once you realise that you can transfer any type of
medium by attaching it to an e-mail. If you have a
microphone and speakers on your machine, try
opening the Sound Recorder (the path is Start |
Programs | Accessories | Entertainment | Sound
Recorder). Record a bit of dictation and save the
resulting .wav file, then e-mail it to yourself. You
have e-mailed dictation, and, if you felt so inclined,
you could use a more elaborate program than
Sound Recorder to dictate anywhere and e-mail
it anywhere, say, to a branch which has excess
typing capacity at that point in time, or to an
outside transcription agency, all without any
transfer of physical objects.
e:
scownie@yahoo.com
43 May 2002 Volume 47 No 5
Figure 2

Journal
Risk Management
Omissions cause
most claims
This month Alistair Sim considers a series of case studies which illustrate
a variety of risk management points. In most of the case studies, problems have been
created by an omission which call for a particular risk management approach.
May 2002 Volume 47 No 5 44
No right of access
J was the proud owner of a classic Triumph TR4.The car
was his pride and joy and it was only ever taken out of
the garage in perfect weather conditions.
As a result, when J purchased a flat in a recently
converted house, it was the substantial garage at the
rear of the house that had been the deciding factor. It
was therefore a major problem when J received a stern
letter pointing out that J had no right to drive along the
track down the side of the house leading to the garage
at the rear of the building.
The owner of the track is offering J the opportunity to
acquire it at a price of £10,000. J is particularly aggrieved
about the whole situation in view of the fact that the
garage was the main reason for buying the flat.
How is this situation likely to have arisen? How could
the situation have been avoided?
Most claims arise as a result of omissions. In this case,
there may have been an omission to examine the title
properly or an omission to provide for an express right
of vehicular access to the garage or an omission to
establish that an express right of access was required. A
checklist approach might assist to prompt consideration
of all the relevant issues in taking instructions from the
client, in examining title and in drafting documentation.
Retention of clients’ documents
F & Co received a letter from a client P with whom
there had been no contact for several years. P was
asking for papers which he said F & Co had been
holding for him in safekeeping.
One of the partners in F & Co was fairly sure the
papers had been forwarded to P a long time ago. He
was pretty sure about this because he remembered
handing over the documents personally when P called
at F & Co’s offices.
The file was retrieved from archival storage but it
revealed no record of the meeting with P or the fact
that the documents had been handed over.
Nevertheless, the solicitor was sufficiently confident of
his recollection that he wrote to P and said that the
documents were already in P’s possession.
That prompted a threatening letter from P accusing F &
Co of having lost the documents and intimating a claim
for losses that P might suffer as a consequence.
F & Co were in a weak position because their records
(and P’s) confirmed that the documentation had been in
F & Co’s possession; there was nothing to verify that the
documentation had been returned; there was certainly
no receipt from the client confirming that he had
received the documentation back from F & Co.
How would you avoid finding yourself in this position?
When original documents are received and returned,
ideally this should be recorded both on the file, perhaps
also in a central register. While files may be destroyed
after a retention period, if a central register is
maintained longer term, that will provide a record of
documents received and returned/delivered/destroyed.
Best of all, get signed acknowledgments from clients.
Terms of engagement/Non-engagement
Firm X acted for A in a successful medical negligence
claim. Some months after settlement of that matter, Firm
X received a letter from another firm of solicitors
alleging that Firm X had allowed a claim for
discrimination to become time barred. On checking their
file, Mr X of Firm X was reminded that the issue of a
possible discrimination claim had arisen incidentally
during the course of a discussion concerning the medical
negligence claim. Mr X was quite clear that he had never
undertaken to act for A in the discrimination matter.
How would you have avoided finding yourself in this
situation? If Mr X was so clear in his own mind that he
was not acting for A in any separate discrimination claim,
why did he not communicate the position clearly to A?
For the sake of clarity and his own protection, Mr X
might have issued a non-engagement letter in relation to
the discrimination matter.
Partnership liabilities
Firm Z acted for C in connection with his departure
from the partnership of ABC & Co. This was an
extremely acrimonious bust up and there were

protracted negotiations over every
aspect of C’s disengagement from
the business.
Eventually, a Minute of Dissolution
was concluded and signed and C
required to make a modest
payment to his former partners in
respect of his agreed balance
reflecting the level of business
borrowings at the date of C’s
departure.
Some time later, the business failed
and the bank called up securities
and guarantees for the business
borrowings. Because there was a
shortfall, the bank looked to C in
terms of a Personal Bond which he
had signed and from which he had
never been released.
How would you ensure that no
client of yours found himself in this
position? Firm Z might have drawn
up a list of action points to be
attended to in order to achieve C’s
objective and these could have
been diarised and copied to the
client. All of this would have helped
to minimise the risk of critical issues
being overlooked and to avoid any
misunderstanding between solicitor
and client.
Lenders’ general instructions
Firm Y acted on behalf of
purchasers of a house and for their
lenders in the preparation,
execution and recording of a
Standard Security. On the face of it
the purchase and loan transactions
proceeded normally.
The purchasers/borrowers
defaulted and the property was
repossessed by the lenders who
incurred a loss. The lenders
requested Firm Y’s file and intimated
a claim on the basis that, inter alia,
Firm Y had failed to comply with
certain terms of the lenders’
General Instructions to Solicitors.
The letter received from the
solicitors acting for the lenders
alleged inter alia that, contrary to
express terms of the General
Instructions to Solicitors, Firm Y had
failed to report to the lenders:
■ that the whole purchase price was
not passing through the hands of
Firm Y as part of the price was
apparently paid by the borrowers
direct to the seller; and
■ that the party from whom the
borrower was purchasing had
only acquired the property
within the last month or two.
The letter intimated that, having
repossessed and sold the property,
the lenders had sustained a loss and
were holding Firm Y liable. While
this claim may involve issues of
causation and quantification which
are less clear cut, if the lenders’
allegations are justified, then it
appears, on the facts stated, that
Firm Y has omitted to comply with
express provisions of the lenders’
instructions which are express
terms of the contract between the
lenders and Firm Y. Lenders’ general
instructions are effectively a
checklist of points to be addressed,
documented and reported on as
appropriate.
Unimplemented undertakings
Firm Y acted for B in the purchase
of a flat. Property Enquiry
Certificates produced by the sellers’
solicitors disclosed the existence of
an outstanding notice. After
discussion, the sellers’ solicitors
agreed that the letter of obligation
would incorporate an undertaking
on behalf of their clients to deliver a
receipt and discharge.
Following settlement, the file was
fee’d up and archived. The sellers’
solicitors were never chased for
delivery of the outstanding receipt
and discharge. When B came to sell
the flat some years later, the notice
was still outstanding, the previous
owners hadn’t paid the local
authority and were now untraceable
and B was required to attend to this
in order for the sale to proceed.
How do your ensure that your
clients don’t find themselves in the
same situation as B? On the facts
stated, it appears there may have
been an omission on the part of
Firm Y to diary the outstanding
undertaking and, if necessary, to
make B aware of the situation and
B’s options in the event of the
sellers’ failure to implement their
undertaking. Effective diarying is
clearly a critical element of avoiding
this sort of situation.
Journal
Risk Management
The information in this page is
(a) intended to provide guidance on
matters of practical risk
management and not on issues of
law and (b) is necessarily of a
generalised nature. It is not specific
to any practice or to any individual
and should not be relied on as
stating the correct legal position.
Alistair Sim is Associate Director in
the Professional Liabilities Division at
Marsh UK Limited Alistair.J.Sim@marsh.com
e:
45 May 2002 Volume 47 No 5

Journal
e:
In Practice
bruceritchie@lawscot.org.uk
May 2002 Volume 47 No 5 46
Bruce Ritchie, Director of Professional Practice at the Society, continues
his series looking at recent decisions of the Professional Practice
Committee, this month focusing on aspects of court work
MATRIMONIAL
a. Registration of Agreements in Books
of Council and Session
The Committee considered the question of
confidentiality in relation to documents registered in
the Books of Council and Session which is a public
register accessible by researchers, journalists and
others.The Committee agreed that clients’ instructions
should be obtained before registering agreements but
recognised that in many if not most cases the
arguments in favour of registration would outweigh the
arguments against.
b. Breach of Contact Orders
The Committee were asked to consider the conduct
of solicitors in breach of contact situations. It was
suggested to the Committee that solicitors who simply
intimate that their client is withdrawing contact without
making any further comment and in particular without
indicating that their client had been advised against
doing so were acting improperly. The Committee did
not agree. A solicitor’s duty is to advise his own client.
Such advice is confidential and the Committee felt that
whilst a client might be in breach of the Court Order
there is no duty on the solicitor to do more than
report the factual position to the solicitor on the other
side. If in the course of proceedings to enforce a
Contact Order there is evidence that a solicitor has
advised the client to ignore it, and the solicitor is found
in contempt of Court as a result, that would be a
matter of conduct which would be the subject of a
justifiable complaint.
FUNDING LITIGATION
a. Duty To Advise On Legal Aid
The Committee considered the nature of a solicitor’s
duty to advise a client about Legal Aid. They agreed
that the duty is to advise a client of the existence of the
Legal Aid scheme (including Legal Advice & Assistance)
but does not extend to a detailed consideration of
whether a specific client may be eligible for Legal Aid
unless the client requests such consideration and the
solicitor is willing to do so. If the firm does not
undertake Legal Aid work, they have a duty to make
that known to prospective clients and to advise them
that if they wish to apply for Legal Aid they should
consult another firm of solicitors.
b. Legal Expenses Insurance
The Committee considered that legal expenses
insurance and other forms of private funding are
entirely different from Legal Aid. Legal Aid is a statutory
right only available through the solicitor of the client.
There is no duty to enquire if the client already has a
legal expenses insurance policy, as it is reasonable to
expect the client to bring this to the solicitor’s attention.
EXPERT WITNESS REPORTS
The Committee were concerned to receive a letter
from an expert who had been asked for a report.The
solicitors had asked for any adverse comments to be
sent under separate cover. The Committee felt that to
seek a report from an expert in these terms was
improper and that the expert was entitled to seek
confirmation in writing that the “good” report would
not be used to mislead the other party to the matter
or their agents or insurers.
MINUTE FOR RECALL OF DECREE –
DEFENCE “DEBT DENIED”
The Committee considered the conduct of a solicitor
putting forward a defence of “debt denied” in support
of a Minute for Recall of a Decree in absence which had
passed against the same firm of solicitors.The solicitors
had previously acknowledged the debt, had made part
payment by cheque and had offered to pay the balance
within a specific period. The Sheriff complained about
the solicitors conduct as he felt that the defenders were
themselves officers of the Court and had stated a
specific defence which was contradictory to the terms
of their own letter. The Committee agreed that in
relation to a Minute for Recall of Decree the solicitor
had knowingly misled the Court by stating “debt
denied” as a defence where he had already accepted
that the debt was due and payments to account had
been made.
DEBT COLLECTION – USE OF HEADED
NOTEPAPER
It was held to be improper for solicitors to allow a debt
collection agency to send out letters on the solicitors’
headed paper, although in this particular case the letters
bore the registered office and registered number of the
debt collection company.The Committee accepted the
undertaking by the solicitors concerned to deal with
matters themselves in future by electronic transfer of
data to their own office before such letters were sent.

Journal
Videoconferencing
A modern way to meet
David Steele reports on a quiet growth in the use of videoconferencing by the legal profession
The conduct of complex legal conferences, involving
lawyers and clients from across the globe, is in the midst
of a major revolution.
While in the past legal teams, their clients and
sometimes bundles of documents and evidential
material have had to move thousands of miles at great
expense in travel and chargeable hours now all parties
can be brought together by the wonders of technology.
There has already been a remarkable growth in the use
of videoconferencing in the legal profession and now a
number of major companies are gearing themselves up
to improve the service available even further.
Much has been written and said about the growth of
the use of video links to protect children and other
vulnerable witnesses in delicate criminal proceedings
but the growth of its use in commercial practice has
been an altogether quieter affair.
For understandable reasons the profession was initially
somewhat nervous about conducting business which for
personal or commercial reasons requires the highest
levels of confidentiality.
With the increasing sophistication of the video
equipment itself, and more significantly the encryption
of the signals which keep them away from prying
electronic eyes, the use of such systems has become
more and more attractive to legal firms.
The advantages can be looked at in two ways – from a
business perspective and what cost savings are involved
and from a client service perspective and how that can
be achieved in the best possible way.
From the former the firm will see improved accessibility,
increased productivity and faster decision making with
the added advantage of considerable cost savings due to
reduced travel and “down time” of key personnel.
As far as client service is concerned there are many
potential advantages including faster resolution of
difficulties, a reduced need to travel and be face to face
with an adversary or business rival and in most cases a
more relaxed environment in which to do business.
Lesley Wilson, senior administrator in the Law Society of
Scotland’s Update Department, is seeing an increase in
interest from legal firms in videoconferencing as a
business tool.
She said:“We have facilities in our offices which are used
not only by the society for conducting business but by
legal firms who want to hire the rooms, the equipment
and the expertise.
“It now has global possibilities and only a week or so
ago we had a solicitor in who wanted to conduct a
meeting with a colleague in Australia.”
Lesley Wilson sees the growth continuing and hopes
that more firms will try the technology.
She added: “We have conducted business meetings,
including council meetings because some members
including the President work in remote locations, and
also use videoconferencing for training and seminars.
“It is ideal for lectures and discussion groups although
workshop based seminars are perhaps better
conducted with all the participants together. I believe it
is the way forward.”
Heidi Berry, marketing manager of Global VideoCom,
one of the country’s leading providers of
videoconferencing facilities, sees the legal profession as a
natural progression of the work they have been doing in
the public and private sectors.
47 May 2002 Volume 47 No 5

Journal
Videoconferencing
May 2002 Volume 47 No 5 48
She said: “We have a wide range of
clients throughout the world who
have a need to communicate quickly
and efficiently and who come to us
for the equipment to do it.
“The service has come a long way
in a few years and now with the
increasing use of Internet Protocol
(IP) we are able to give greater
guarantees of quality of image and
the reliability of the line. In the early
days of videoconferencing there
were issues over poor quality
pictures, lack of lip synch and the
unreliability of lines. Those are all
things of the past.”
As far as the legal profession is
concerned Heidi Berry lists four key
advantages of using the new system:
■ Multipoint videoconferencing
between clients, solicitors and
counsel which can take place
despite vast geographical
distances.
■ Witnesses and experts being
interviewed via videoconference,
thereby meeting tight court
deadlines more easily.
■ The use of peripherals and data
collaboration technology which
allow all parties access to
evidence and other
documentation with absolute
clarity.
■ Competitive advantage,
increased client satisfaction and
faster resolution of international
negotiation. Furthermore, clients
may be more inclined to deal
with law firms using similar
technology.
Global VideoCom has its head
office in Slough and offices in the
centres of both London and
Edinburgh and as well as offering
facilities at each of these centres for
setting up conferences is able to
take the technology to the client.
Also in Edinburgh at its Palmerston
Place headquarters is European in
Scotland (EiS) which was set up ten
years ago to provide a wide range
of business support services and
which provided the first
videoconferencing suite in Scotland.
The company recognised at an
early stage that technology had a
vital role to play in the development
of international business and it now
leads the Scottish market in
European and global video linking.
General manager Alastair Angus is
already seeing a rapid growth in the
use of their services by the legal
profession but admits there is still a
long way to go.
He said: “There was a reluctance
among the more traditional law
firms to embrace such a new form
of communication. They were
concerned about security and
whether or not the work carried
out on video links would carry
suitable weight and be acceptable
within the law.
“Let’s face it there were also a few
fat cats who rather liked the idea of
travelling the world and living in the
top hotels at someone else’s
expense.
“With the help of lawyers we have
worked to reassure potential users
of the system that the technology is
safe and secure and that they and
their clients can have complete
peace of mind.”
Among the major uses to which EiS
has already put their systems is the
transmission of the evidence of
expert witnesses from Scotland to
the High Court in London during
civil litigation.
Alastair Angus explained: “We have
had a number of cases where
malpractice suits are being
conducted against doctors in the
courts in London and the expert
evidence of a witness from Scotland
is required for one side or the
other.
“That witness can come in to our
offices and be set up within minutes
to give the evidence required down
a secure and confidential video link
to the court.This reduces by a huge
margin the costs to the legal system
and also the time that this expert
has to be away from the important
work which needs to be done at
their clinic or hospital.”
The company also handled the case
of a witness from Scotland who was
unable to travel to attend a murder
trial in Australia but gave vital
evidence down a secure video link.
Alastair Angus added: “We are
confident of the service and that it
will continue to provide a valuable
support to the legal profession.”
Meanwhile the use of video for the
purposes of the smooth running of
the legal system is now also widely
used in the criminal courts in
Northern Ireland.
In the past remand prisoners have
had to be brought from jails
throughout the province for interim
hearings at the courts in Belfast
with the resultant costs in transport
and manpower.
Now, however, after agreement
among prosecuting authorities,
defence lawyers and the accused
persons themselves, many remand
hearings are conducted remotely
with the prisoner going to a private
video room to see and be seen
back at the court.
The courts have now to spend less
time on interim hearings and the
prison system does not have to
devote many hundreds of man
hours to the collection and safe
transportation of accused.
Global VideoCom has all its details
posted at www.globalvc.co.uk
while European in Scotland is at
www.euroscot.net.The Law Society
of Scotland website is at
www.lawscot.org.uk.

Journal
Europe
Scots lawyers
encounter Eurodevils
Every year, the British Council European Young Lawyers scheme offers the opportunity for 10 lawyers from
across Europe to spend 6 months in Scotland studying at university and working with solicitors, advocates and
judges as part of a long-running programme to allow them to gain an insight into Scots law and culture.
Participants in the scheme have traditionally been known as “Eurodevils” and here the 2002 devils give an insight
into their reasons for coming to Scotland, and how they have found the Eurodevil experience.
Do you ever feel tired of applying the same old
legal rules and principles, to be found in the same
sources of law? Feel like it would be nice to try
out another legal system for a while, maybe even
in a different language? Yes? Well, this year’s
Eurodevils have been given exactly this
opportunity.Ten young lawyers, all from different
European jurisdictions, are currently trying their
best to practice law in Scotland – and they are
quite enjoying themselves doing it.
Many lawyers in Scotland will have come across
the European Young Lawyers Scheme, or its
participants, the Eurodevils, before.The scheme is
an annual programme, and it celebrates its
twenty-seventh anniversary this year. The aim of
the six-month scheme is to introduce young
lawyers from Europe to Scottish law. It is run by
the British Council, and is mainly divided into
three parts: approximately two months are spent
at the Faculty of Law of Edinburgh University (an
academic introduction to the law and governance
in Scotland), two months in legal offices or with
public bodies in Edinburgh or Glasgow and finally
two months attached to members of the Faculty
of Advocates at Parliament House (hence the
epithet “Eurodevils”). The programme also
includes a one-week study visit to Belfast.
Taking part in this year’s scheme are ten young
men and women, all from different European
jurisdictions (Belgium, Estonia, Finland, France,
Germany, Hungary, Lithuania, Portugal, Spain and
Sweden). Most are in their late twenties or early
thirties. They are fully qualified lawyers within
their own legal systems, but have decided to take
time out in their careers to learn about Scottish
law and culture. As Miguel Fabre, the Portuguese
participant, puts it: “Taking part in the scheme is
not only a challenge professionally, trying to
practise in a foreign language and applying a
whole new set of rules, but also a great chance to
learn about a different country – when I was
accepted for the scheme, I knew that I definitely
had to take the opportunity.”
May 2002 Volume 47 No 5 50
From left to right: Lionel Vuidard (France), Raminta Karlonaite (Lithuania), Maike Baumann (Germany),
David Löfgren (Sweden), Miguel Fabre (Portugal), Joëlle Godard (University of Edinburgh - programme
director), David Preston (Vice-President, Law Society of Scotland), Mari-Liis Tors (Estonia),
Kimmo Nikulainen (Finland), Gerda Vastagh (Hungary), Renaud Simar (Belgium), Carmen Escudero (Spain).
The Eurodevils arrived to Scotland in mid-January
this year, and began by attending five weeks of
introductory courses at the University of
Edinburgh. A number of seminars were held,
covering a broad range of topics.These included,
for example, much appreciated sessions with
Lord Reed (on Human Rights) and Professor
Black (on the Lockerbie Trial). In addition to the
seminars, visits were arranged to the Court of
Session and to the Procurator Fiscal’s Office.
During the initial academic period, many
opportunities were also given for the Europeans
to familiarise themselves with Scottish cultural
traditions.The German Eurodevil, Maike Baumann,
explains: “Yes, we were, for example, invited to a
ceilidh during our first week here.We had no idea
what it was when we went, and did not know that
we would be expected to dance. We all did our
best though, and we had a great time. I think
everyone was especially impressed with the
dancing moves of Kimmo (the Finnish
participant)”. The Eurodevils then went on to
attend a traditional Burns Supper at the
Caledonian Hotel, arranged by the university’s
Law Society, where many of them got their first
taste of haggis.“It was a wonderful night, and it was
also the first formal dinner I have gone to where I
have felt like I stood out because I was wearing
trousers”, jokes Renaud Simar from Belgium (with
reference to the fact that a great number of the
male guests were dressed in their kilts).
After the initial courses, and after spending a week
in Northern Ireland, the European lawyers started
their placements with different Scottish legal
offices just before the end of February.This year,
the Eurodevils were on placement with a number
of Scotland’s top firms of solicitors, as well as
public bodies. Thanks go to Balfour & Manson,
Brodies, Burness, Fyfe Ireland, Ketchen & Stevens,
Maclay Murray & Spens, McCourts, McClure
Naismith, Simpson & Marwick, Stevenson &
Marshall, Tods Murray, Employment Tribunals,
Procurator Fiscal’s Office, Crown Office, the
Scottish Executive and Scottish Law Commission
for providing placements. “The placements are an
important part of the scheme”, explains Joëlle

Godard, the Academic Director for
the programme, “and they have
generally been much appreciated by
both the participating firms and by
the Eurodevils”. During the
placements the European lawyers
are doing their best to assist their
hosts, while learning about the
practical workings of the Scottish
legal system. David Löfgren, the
Swedish participant, says: “It is
indeed a very interesting
experience. One thing I have
noticed is that the questions asked
by the clients are generally the same
in Sweden and Scotland, which
makes sense since they have the
same concerns. A big difference is,
though, that here I do not know any
of the answers without looking
them up”.
From May and up until July this year,
which is when the programme
ends, the Eurodevils will have the
chance to “shadow” advocates at
Parliament House.“This is a unique
opportunity, and we all look
forward to it”, says Carmen
Escudero from Spain. She goes on:
“Most of us are from countries
where there is not a split lawyers’
profession, but, by contrast, the
career as a judge is a separate one.
This will give us an excellent
opportunity to learn about the
Scottish professions up close.”
The Eurodevils are also enjoying
Scotland and Scottish culture in
their free time. “We are trying to
see and do as much as we can
while we are here”, reports the
French participant, Lionel Vuidard,
“and so far we have kept ourselves
quite busy.” Excursions have been
made by the Eurolawyers to
historical towns such as Stirling and
St Andrews during weekends, and
a considerable number of nights
have been spent discovering the
pubs of Edinburgh. “All of us are
very impressed by how friendly
people are here, and how easy it is
to have fun when you go out”, says
Raminta Karlonaite of Lithuania.
Mari-Liis Tõrs, the Estonian
participant, agrees: “Yes, and the
countryside here is beautiful. The
experience from the professional
part of the scheme is certainly only
one of the many good things that
we will take with us when we go
back home in July”.
Practice in Europe
Recognition of professional
qualifications under discussion
In an attempt to facilitate the free movement of professionals, the European
Commission has come forward with a proposal on the recognition of
professional qualifications (www.europa.eu.int/comm/internal_
market/en/qualifications/index.htm). According to the proposal, lawyers’
practice rights will continue to be the subject of specific Directives – namely
the Lawyers’ Establishment Directive and the Lawyers’ Services Directive -
as these Directives concern the right to practise rather than professional
qualifications. However, the proposal will cover the recognition of lawyers’
professional qualifications. As the proposal currently stands, lawyers wishing
to have their qualifications recognised in another Member State would have
a choice between an aptitude test and an “adaptation” in the host Member
State. The text has now been sent to the European Parliament and the
Council of Ministers for their views.
Employment Law
Equal Rights for Temporary Workers
On 20 March 2002, the
Commission published a draft
Directive setting out general
principles for the equal treatment
of temporary workers in an
attempt to bring them into the
mainstream of the labour market.
The Directive, to be adopted under
the co-decision procedure (which
puts the Parliament and the Council
on a level footing in the legislative
process), offers temporary agency
workers the right to the same pay
and conditions as regular
employees in cases where their
work is equivalent and the worker
profiles are similar.The proposal will
allow temporary workers to take
advantage of maternity and sick
leave, pension schemes and training.
The provisions oblige employment
agencies to make sure that “user
undertakings” - those companies
which use temps - comply with the
rules. However, the provisions will
not apply where a worker is a
permanent employee of the agency,
and if the employment relationship
itself affords adequate protection to
the worker. Neither will it apply in
cases where the temporary worker
is replacing a better qualified or
more experienced employee. The
UK lacks specific legislation on the
rights of temporary workers and
UK employers’ associations have
expressed opposition to the
proposal.The Parliament will give its
Opinion to the Council shortly,
either approving or amending the
proposal.
Electronic Commerce
European businesses set for
change of identity through ‘.eu’
EU businesses and organisations will soon have the opportunity of assuming
a new European identity through the planned .eu domain name. In October
2001 the Commission put forward an amended proposal for a Regulation
which would put in place the framework for the .eu suffix. The proposal was
adopted by EU ministers at the Telecommunications Council at the end of
March 2002.Although this means that the domain name has received official
approval, there are still a number of formalities and procedures to be
completed by the Commission before it can become operational. The
Commission will publish a call for expressions of interest for the
organisation that will operate the Registry for the .eu domain name in the
coming months.The registration of .eu domain names is expected to start
in 12-18 months.
Journal
Europe
information:
If you would like further
information or if you would
like to subscribe to any of the
services provided by the
Brussels Office (Brussels
Agenda, EU Documentation
or Enquiry Service) or
Guidance Notes which are
all free of charge,
please contact us at:
The Law Societies’ Joint Brussels
Office,
142-144 Avenue de Tervuren,
B-1150 Brussels, Belgium,
or DX 1065 BDE Belgium
Tel: 00-32-2-743 85 85
Fax: 00-32-2-743 85 86
and by e-mail:
brussels@lawsociety.org.uk
Information is also available
from the International
Relations section of the
Society.
Tel: 0131 476 8132
Fax: 0131 225 4243
e:
international@lawscot.org.uk
51 May 2002 Volume 47 No 5

Journal
Law Reform
In and out
of the Houses
Outwith the parliaments, representatives of the
Society’s Licensing Law Working Party gave
evidence to the Nicholson Committee on
reform of the liquor licensing regime and, in
particular, on amendments to the Licensing
(Scotland) Act 1976.
UK Parliament
The Proceeds of Crime Bill has progressed from
the House of Commons to its committee stage
in the House of Lords.This legislation will change
solicitors’ duties in reporting suspected money
laundering.The current subjective test based on
knowledge of the client will be replaced by an
objective test of whether a solicitor would
reasonably suspect funds to be the proceeds of
crime. There are also extended provisions for
criminal confiscation orders and, for the first
time, property will be recoverable through the
civil courts in the UK.
The Enterprise Bill will significantly change UK
competition law. It will give new powers and
status to the Office of Fair Trading, amend the
constitution and function of the Competition
Commission, create new cartel offences, permit
class actions under the EU Injunctions Directive
and amend the law of insolvency.
The Tax Law Committee is working with the ongoing
review of capital gains tax and the
consultation process on the Government’s
proposals to change stamp duty. The
Committee is also considering the Finance Bill
following on April’s Budget.
The Scottish Parliament
The Criminal Justice (Scotland) Bill is so wideranging
that many have compared it to a
Miscellaneous Provisions Bill. The content
includes public protection, victims’ rights, sexual
offences, prisoners, drugs courts, non-custodial
punishments, children (including the
controversial “smacking proposals”), evidence
and procedural issues, new provisions on
bribery and corruption, criminal records, local
authority functions and amendments to the
May 2002 Volume 47 No 5 52
The wheels of reform are turning full tilt and the Society’s law reform team
is busy working on the many Bills and consultations
going through the legislative mill.
Public Defence Solicitors scheme, police ranks,
jury matters and Northern Irish search
warrants. The debates on this Bill will be long
and involved and will impact on every criminal
law practice.
The Land Reform (Scotland) Bill is about to
enter its Stage 2 proceedings where
amendments may be proposed. The Society’s
team gave extensive evidence to Justice 2
Committee at Stage 1 and the Rural Affairs
Committee is drafting amendments for the
Committee’s consideration.
The Justice 1 Committee Inquiry into the
Regulation of the Legal Profession in Scotland
progressed with the recent publication of an
options paper for consideration by all involved
in the inquiry. The paper sets out the following
eleven discussion points:
1 The Committee is not in favour of the
option of a completely independent system and
believes that it would be more effective to
maintain the present system of joint regulation
with increased independence. Do you agree?
2 The Committee is aware of the practical
difficulties which could be associated with the
creation of a single gateway for all complaints.
Do you think that a single gateway should be
created? If so, how do you think that it would
operate in practice?
3 The Committee recommends enhancing
the powers of the Scottish Legal Services
Ombudsman as outlined in the paper (both in
relation to the Law Society of Scotland and the
Faculty of Advocates). Do you agree?
4 Whilst the Committee favours strengthening
the conciliation process, requiring firms to have
a complaints procedure, with a delegated
person to deal with complaints, it also
recognises that such a procedure could be
problematic for small firms and sole practitioners.
The Committee seeks views on how the
conciliation process could be strengthened in
practice.
5 The Committee is inviting views on whether
the professional bodies should be encouraged
to investigate small negligence claims within the
complaints procedure, rather than rejecting
these, and referring them to a solicitor.
6 In your view, should compensation be
offered for a complaint about an individual
solicitor’s conduct? If so, under which
circumstances?
7 The Committee favours increasing the
maximum level of compensation which a
solicitor can be ordered to pay a client in
relation to inadequate professional services with
provision for regular increases in the maximum
compensation. Do you agree? If so, what should
the maximum level of compensation be?
8 Do you think that the definitions of a
complaint could be amplified and clarified? If so,
how could this be achieved?
9 The Committee favours the introduction of
delegated powers to allow final decisions about
complaints to be made by Committees of the
Law Society rather than the Council. Do you
agree?
10 Are you of the view that lay involvement in
the complaints process for the Law Society of
Scotland and the Faculty of Advocates should be
increased? If so, how could this be achieved?
11 In your view, how should any recommended
changes to the system be funded? Should these
changes be funded by:
(a) the Government;
(b) the professional bodies; or
(c) both the Government and the
professional bodies?
The full options paper is on the news pages of
the Society’s website at www.lawscot.org.uk.
Comments from members on the discussion
points, the options paper or any other Bills or
consultations mentioned are welcome and
should be marked for the attention of Michael
Clancy and sent to:
e:
moiragoll@lawscot.org.uk

I will be very happy to receive reviews of books which readers have
enjoyed and feel would be of interest to the profession. I would also
welcome suggestions on areas of the law which we should tackle.
Alistair Bonnington
The Law School,The Stair Building, University of Glasgow G12 8QQ
t: 0141 338 2352 f: 0141 338 2973 e: alistair.bonnington@bbc.co.uk
Journal
Review
Palmer’s Limited Liability Partnership Law
A volume featuring the famous Palmer name
should promise so much to a corporate lawyer.
So many editions of Palmer’s Company Law have
updated us, educated us, and
generally impressed with the
levels of scholarship and
research stemming from the
great Sir Francis Palmer
himself. The editorial team
responsible for this work is
the team responsible for the
current edition of that work. It
comprises six professors and
our own David Bennett as
Scottish editor. A fine start.
The misgivings begin at the
very beginning. I should stress that these
misgivings relate not to the quality of the book
itself, rather to the subject matter. The book
comprises some 250 pages of text, the remaining
550 or so pages comprising the Act, Regulations,
forms, legislation amended by the Act and a draft
Statement of Recommended Practice. Other
smaller works do not have the space for this.
Some which I have seen simply recognise that
Scotland exists, but decline to go there. The fact
that the Scottish dimension is included in all the
Edited: Morse & Others
Sweet & Maxwell
Price £125
ISBN 0421 740 000
relevant parts of the book, and the differences
between the two animals that are Scottish and
English partnerships recognised is a tribute to Mr
Bennett. This is not an English
book featuring one chapter with
a kilt, but one which is useful for
any UK practitioner.
So why the misgivings? One only
has to read the Preface to find
out. A review of company and
partnership law is now overdue.
This Act, however, has no
connection with either review,
but was an attempt to protect
the Big 5 accountancy firms
(whether this numeral will be
accurate when this goes to press is a moot
point), and prevent a move offshore where
limitation of liability was possible. The legislation,
we are told, was enacted, “after some
consultation, but little consideration in depth.” For
example, we are now left with two different
versions of section 110 of the Insolvency Act
1986 on the statute book.The law is so obscure
that Part C of the book is an attempt to provide
a statutory text of Acts applicable as modified to
LLPs; however, the editors stress that this is not
an authorised version, simply a “best guess
application of the modifications to the existing
text.” The preface ends, “The law is stated as
known to, or divined by (my emphasis), the
editors on April 6 2001.”
One does wonder how often this strange hybrid
will be used in practice, particularly when it will
generally be taxed as a partnership (unless it goes
into liquidation when it will, confusingly, be taxed
as a company). If that is the case, many of us may
find that this volume gathers more dust than
many of the tomes on our library shelves.The law
will probably have to be clarified sooner rather
than later, which makes me wonder, not for the
first time, why many more books are not
produced in loose leaf version with
accompanying CD ROM.
Let us congratulate Mr Morse and his colleagues
for their hard work and scholarship. Let us
bemoan, once again, the undue haste and lack of
attention to detail shown by the parliamentary
draftsmen of today. But rush to our bookshops to
buy this? I cannot help but think we will not be
swamped by clients seeking the conversion.
Tom Johnston,Young & Partners
Business Lawyers, Glenrothes and Dunfermline
53 May 2002 Volume 47 No 5

Journal
Notifications
May 2002 Volume 47 No 5 60
Applications
for admission March/April 2002
ADAMS, Gillian Claire,
LLB(HONS), DIPLP
CURRIE, Nicola Mary,
LLB(HONS), DIPLP
DARCY, Ruth Sarah Anne,
LLB(HONS), DIPLP
DAVIDSON, Leigh Suzanne,
LLB(HONS), DIPLP
Entrance Certificates
issued during March/April 2002
PATERSON,Tracy Elizabeth,
LLB(HONS) Dip LP
MONDAY 10 JUNE 2002
Scots Commercial Law 1000 - 1200
1330 - 1530
Professional Responsibility (if required) 0900 - 1215
TUESDAY 11 JUNE 2002
Scots Private Law 0900 - 1200
1330 - 1630
Accounting (if required) 0900 - 1200
1330 - 1630
WEDNESDAY 12 JUNE 2002
Evidence 1000 - 1200
Procedure (if required) 1000 - 1200
Scots Criminal Law 1330 - 1630
GALLAGHER, Lynsey,
LLB(HONS), DIPLP
KHAZAKA, Mignonne Houneini,
BA, LLB, DIPLP
MACKAY, Georgina Ann,
LLB(HONS), DIPLP
MARSH, Lucy Emma,
BA(HONS), LLB, DIPLP
McCONVILLE, Clare Frances,
LLB(HONS), DIPLP
NEWALL, Gordon Scott,
LLB(HONS), DIPLP
PATERSON, Fiona Lesley,
LLB(HONS)
TAVARES-CHEN, Carol Bambi,
BA, LLB, DIPLP
Examinations
timetable for the next diet of examinations – June 2002
THURSDAY 13 JUNE 2002
Taxation 0900 - 1200
European Community Law 1330 - 1630
FRIDAY 14 JUNE 2002
Public Law and the Legal System 0900 - 1200
Conveyancing 1330 - 1630
The Oral Examinations will be held on Wednesday 26
June. Candidates will NOT be required to attend Oral
Examinations unless they are notified that they must do
so. Enrolment forms may be obtained from Treena Jobson,
Senior Administrator (Legal Education), 26 Drumsheugh
Gardens, Edinburgh EH3 7YR, and these should be lodged
no later than Friday 10 May. The fee for a first attempt
at each examination is £40.00 and for each subsequent
attempt, £60.00.