OF THE LAW SOCIETY OF SCOTLAND THE LAW SOCIETY OF SCOTLAND INTERMEDIATE DIETS: FLAW IN EMERGENCY LEGISLATION? MORTGAGE RIGHTS ACT: SERVING NOTICE ON DEBTORS INTERVIEW: DAVID PRESTON

THE

JOURNALOF THE L AW SOCI ETY OF SCOTL AND

INTERMEDIATE DIETS:FLAW IN EMERGENCY LEGISLATION?

MORTGAGE RIGHTS ACT:SERVING NOTICE ON DEBTORS

INTERVIEW:DAVID PRESTON

VOLUME 47 NO 5 MAY 2002

Members of the PeriodicalPublishers Association

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

60 Notifications

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 QCScotland’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.

38 David Preston

New President has a serious agenda behind his light-heartedoutlook.

47 Videoconferencing The profession is slowly embracing the benefits of remote meetings.

ContentsMAY 2002 VOLUME 47 NO 5

Regulars

Cover Image:Brian McDonough

[email protected]:

35 New Summary Cause Rules Sheriff Alastair Stewart concludes his guide to the new rules which come into force in June.

JournalViewpoint


President’s reportIn his final President’s report, Martin McAllister looks

at some of the fundamental issues facing the profession in the future.

Looking forwardIt would be easy for me to end my Presidency byreflecting on an extremely full and interestingtime in office, but I would rather share somethoughts on the future.We are a forward-lookingprofession and, over the past year, my views havecertainly been influenced by my experience.

Tomorrow’s profession and market trendsThe Faculty meetings around Scotland, which Ihave enjoyed so much, have confirmed my viewsthat there are some fundamental issues facing theprofession. At a Faculty meeting in a rural area afew weeks ago the solicitors attending said thatwhilst business is relatively healthy, they are havingdifficulty attracting trainees to rural practice.Anecdotally it seems that fewer young solicitorsare entering legal aid practice. We are often toldthat the average age of members of theprofession in some non-city areas is rising.

The larger Scottish firms are competing for thebest candidates with English, European and US

firms as well as with other

professions. Some large firms are concernedbecause they feel they are bearing the burden oftraining the solicitors of the future.The commontheme is one of matching future requirements ofthe profession with people entering it and itreflects the high international regard for Scottishtrained solicitors.

The issue is, I believe, much wider. At its mostbasic it is about matching the needs of the publicwith the numbers and skills of those entering theprofession. The consequences of the currentmarket dynamics could be far reaching. If peopleare not entering the “traditional” legal aid areas ofpractice then there will be real future problemsfor access to justice. Because of the history oflegal aid remuneration over the last decade it isunderstandable why people are not so attractedto this area of work. Proposed changes to civillegal aid will improve the situation but is only partof the answer.

We can argue that we cannot buck the market. Itis understandable that some firms who taketrainees feel that they are bearing costs oftraining new solicitors but, again anecdotally, itseems that those trainees who start in the largerfirms tend to stay within that circle of firms and indue course become training partners themselves.In some areas of practice, especially in the largerfirms, the training has become so specialised thatit might be difficult to move to another area ofpractice or to general practice.

We need to get hard facts. We need toknow the pattern of trainees’ career

progress. We need to know theimplications for rural areas andrecognise that other professions,including medicine and dentistry, aredealing with the same issue. TheSociety’s Policy and Planning Group isconsidering how best to gather theinformation. Because of the potentialimplications for access to justice, it isnot only a matter for the Societybut also for the Scottish Executiveand Scottish Legal Aid.

Technology as the KeyThere has been much progress on technologyover the last year, particularly on our Private KeyInfrastructure, secure electronic communicationsproject. There is no doubt that the pace ofchange will increase and that we as a professionmust embrace technology or be left behind.Equally important is that those who interact withus and who are key components of the justicesystem must keep pace with us to ensure thatareas such as the administration of criminal lawand the resolution of civil litigation, particularly incommercial matters, progress at the same speed.The Executive, Judiciary, Scottish Courts, CrownOffice, Legal Aid Board, the Society and othersmust work together as a team to be efficient andcost effective. I am confident that this can bedone. There is the goodwill from all thestakeholders in the justice system and we havethe advantage of Scotland being, in relative terms,a small jurisdiction and therefore easier toimplement change.

The practice of law as it is carried on now is quitedifferent from five years ago and will change evenmore in the next five years. I am convinced thatpractice units will change. With increasedspecialisation and the necessity of firms toprovide a full range of services to be competitive,partners will have to look at areas of practice,amalgamations or arrangements with other firmsand the provision of advice their clients seek bothin the city and in rural areas. If we embrace thesedevelopments and adapt, then the profession willremain healthy and will prosper.

My year as President has been fulfilling, exciting,and the best time that any Scottish solicitor couldhave in their professional life. David Preston hasbeen a friend and a very hard working VicePresident over the past year and I wish him everysuccess as President.

It is now time to return to Saltcoats and pick upmy life! What I will never forget and will valuemost of all is the huge amount of goodwill thatthe members of the profession have shown meas President and for that, I am most grateful.Martin McAllister

JournalNews Inside


8 CounsellingCompetitionWinners

8 Leaflet Translated

9 PCC Update

9 New SolicitorAdvocates

10 Obituaries

10 Legal Aid Update

11 Natural WaterBoundaries

12 Charter MarkWinners

12 Small Claims andSummary Causes

Over 100 delegates attended the IT Security and theLaw Seminar held at the Stirling Management Centrelast month. Speaking at the seminar and pictured aboveare Gordon Brewster (Director of IT at the Society)who made a presentation on the e-mail encryption and

PKI project, Keith Foggon (Director of SapphireTechnologies) who discussed IT security, Dr KeithNicholson (Director of IS, MacRoberts Solicitors), whopresented practical implementations of IT security in alegal firm, and Ian Pettigrew.

PUBLISHERSThe Law Society of Scotland

26 Drumsheugh GardensEdinburgh EH3 7YRt: 0131 226 7411f: 0131 225 2934

e: [email protected]: www.lawscot.org.uk

President: Martin McAllisterVice-President: David Preston

Secretary: Douglas Mill

EDITORIAL OFFICE

EditorDavid G. Cameron

Connect Communications,Studio 2001, Mile End,

Paisley PA1 1JSt: 0141 561 0300f: 0141 561 0400

e: [email protected]: www.connectcommunications.co.uk

Deputy EditorRoger Mackenziet: 0141 560 3018

e: [email protected]

Review EditorAlistair Bonnington


Design EditorGillian Park

t: 0141 560 3020e: [email protected]

Chief Sub-EditorEric Wishart

ADVERTISINGJacquie Burrows

t: 0131 467 0503e: [email protected]

Julie Twaddellt: 0141 560 3027f: 0141 561 0400


DisclaimersThe 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 relianceupon 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

IT Security and the Law Seminar

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:

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, 28Abercromby Place, Edinburgh

■ George A Way, Beveridge & Kellas, 52 LeithWalk, Edinburgh

■ Mark R Thorley, Blacklock Thorley, 89Constitution 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

■ 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 vacanciesin the Sheriff Court District of Aberdeen and acontested election is therefore being held.

Only six nominations for seven vacancies in theSheriff Court District of Edinburgh have beenreceived and one vacancy therefore remains.

Election of Members of Council 2002

JournalNews

May 2002 Volume 47 No 5 8


turnaround timesThe current average turnaroundtimes in working days from the

Registers of Scotland are as follows:

Sasine Writs

12 working dayswith a maximum of 17 days

for the latest County

Unattached Dealings with Whole*

15 working dayswith a maximum of 22 days

for the latest County

* An unattached Dealing with wholeis 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 turnaroundtimes for the Land Register is anattempt to capture the elapsedtime that an application is in theKeeper’s hands and is capable ofbeing processed by his staff.The

only period of time not included inthe turnaround time measurementis that time where a requisition has

been raised with the submittingagent.Turnaround times are

calculated at the point where thefinished Land Certificate is

despatched to the Agent. Forobvious reasons Saturdays andSundays are not included in the

measurement taken.

The turnaround time in the SasineRegister is purely the elapsed time(once again without Saturdays and

Sundays) as writs which are withdrawn during the recordingprocess are excluded from the

turnaround time calculation.

Information fromthe Registers

Scottish victory in the International Client Counselling CompetitionTwo students from the Glasgow Graduate School ofLaw have won a remarkable victory in the InternationalClient Counselling Competition, held this year at StetsonUniversity in Florida.

Kathleen Carlin and Eddie McAvinchey carried off firstprize against fierce competition from other internationalteams in this well-established legal competition.

The competition, which started in America around1969, focuses upon the practical skills that are requiredof students once they enter a law office. In particular ithelps to develop students’ awareness of the counsellingand interview features of legal practice. In America thecompetition has been administered by the American BarAssociation, and the majority of American law schoolsnow take part.

It is estimated that world wide around 750 teams takepart in eliminating rounds to produce their nationalrepresentatives.

The team was tutored by Michael Graham ofMacRoberts Solicitors, who is also a part -time lecturer

and senior tutor at the Glasgow Graduate School ofLaw and is the Scottish Chairman of the InternationalC l i en t Counse l l i ng Commit tee . He sa id : “Thecompetition was as tough as any I have experienced.Each year the standard gets better and better as theproblem scenarios become more realistic and complex.Northern Ireland, Australia and the US traditionally fieldoutstanding teams. The US, for example, choose theirwinners from an internal competition involving over 120teams. It was a tremendous victory for the Scottishteam. Both Eddie and Kathleen were a credit not only totheir school but to their jurisdiction.”

Eddie and Kathleen are students on the innovativeGlasgow Graduate School of Law (GGSL) Diploma inLegal Practice.

Eddie McAvinchey said: “Much of what we put intopractice in the competition was learned on the Diploma,and it’s evidence just how well this course prepares usas prospective lawyers, on leaving the theory of theclass-room for the practice and rigours of theprofession.”

Leaflets in six languages

A number of requests have been received frommembers in private practice asking the Group to openout their hugely successful series of seminars to nonmembers.This request was placed on the agenda at thegroup’s recent committee meeting and agreement wasreadily given.There will be a fee to non group members

of £40 (plus vat) for all evening events, but numbers willbe limited to give group members priority. A fullprogramme for 2002/2003 will be published on thewebsite at the end of June, but in the meantime detailscan be found on UPDATE on page 13 in this month’sJournal.

In House Lawyers Group’s New Initiative – Seminars Opened Up to Non Members

The Society has translated its leaflet“Dissatisfied with your Solicitor” intosix languages.The translated leaflets are nowavailable from the Society in Arabic,Bengali, Chinese, Hindi, Punjabi andUrdu.Martin McAllister said: “Helpingpeople find out about the law, theirrights and what they should expect

from their solicitor are fundamental.“The Society is working to ensurethat information on the law andaccess to a solicitor – as well aswhat to do if a client is dissatisfied –is available to everyone in Scotland.”The Society has signed up to theCommission for Racial Equality’sLeadership Challenge, and isworking to ensure that the Society’s

p r o c e d u r e s a n d s y s t e m s a r econstantly improved to meet thechallenge.

Dharmendra Kanani, Head of theCommission, said: “Everyone needsaccess to quality legal provision.TheCRE welcomes this positive steptowards providing a more inclusiveservice.”

International Bar Association 2002 ConferenceThe International Bar Association (IBA) – the world’s largestinternational lawyers organisation – will be holding its annualconference in Durban, South Africa, in October this year. Theconference will bring together something in the region of 3,000delegates and 800 speakers to discuss and debate a wide range ofinternational legal issues, and over the five days of the programme

there will be 100 working session covering everything frominternational cartels to access to justice. For further informationand a copy of the preliminary programme, see the IBA website(www.ibanet.org/Durban) or contact Carol Nightingale at theSociety ([email protected]; tel: 0131 476 8132; fax:0131 225 4243)

JournalNews


Six solicitors have gained Rights of Audience as solicitor-advocates after aceremony at Parliament House, Edinburgh.This brings the total number ofpractising 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 Courtof Justiciary. Lord Hardie presided over the ceremony.

Solicitor-advocates can appear in the highest courts in Scotland and haveequal 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 courtsand I would like to congratulate all the new solicitor-advocates.”

The new solicitor-advocates granted civil Rights of Audience are:

Alisdair Gordon, Penmans, GlasgowMark Morton, Dundas & Wilson, GlasgowMelinda Wallace, Duncan & Wallace, EdinburghPeter Paterson,Tods Murray, EdinburghAndrew Cubie, Maxwell MacLaurin, Glasgow

New solicitor-advocate granted criminal Rights of Audience:

Alistair Bonnington, BBC Scotland, Glasgow

Glasgow Graduate School of Lawand the WS Society have both nowbeen accredited to provide the corecurriculum of the ProfessionalCompetence Course.

Detailed information about both oftheir courses can be found atwww.ggsl.strath.ac.uk/pcc or directfrom either provider.

Paul Maharg, co-director of legalpractice courses at the GGSL, said:“We’re confident that the traineeswill benefit from this course, inwhich legal skills, knowledge andinformation and communicationstechnology are blended to producehighly innovative and practicaltraining.

“Both the GGSL and WS Societyadvertised for tutors to teach on the

PCC, and the take-up by theprofession has been excellent.”

The GGSL courses will be held inG l a s g o w i n M a y , J u n e a n d September and the WS Society inJune, September and October inEdinburgh.

There are 36 hours of corecurriculum modules and traineesneed to complete 18 hours ofe lect ive modules . The elect ivemodules allow trainees and theiremployers to tailor the PCC to theirtraineeship and choose subjectswhich are directly relevant to thework they have carried out in theoffice.

Core and elective modules may becompleted at different times andwith different providers.

Several organisations and firms areworking towards accreditation tooffer elective modules, including theGGSL and WS Society.

Other potential providers includet h e Un i ve r s i t y o f Abe r deen ,University of Edinburgh and theGlasgow Bar Association which areall aiming to provide both core andelective modules starting later thisyear or early next year.

Accreditation to provide the PCCin-house for their own trainees isbeing sought by Dundas & Wilson,Shepherd & Wedderburn andMcGrigor Donald.

Trainees should attend the PCCbetween 6 and 18 months into theirtraineeships, however there will bes o m e f l e x i b i l i t y w h i l s t t h e

accreditation process is ongoing.

The Society is recommending thatemployers meet the costs ofreasonable daily travel to attend thePCC. A fund is being set up toprov ide f inanc ia l ass i s tance totrainees who must travel significantdistances to attend the PCC.

Further details will be available soon.

The PCC providers should bec o n t a c t e d d i r e c t l y a b o u tadmin i s t r a t i ve and enro lmentprocedures.

The Education & Training section oft h e S o c i e t y ’ s w e b s i t e h a s information about the new trainingprogramme at www.lawscot.org.ukor please contact the Society’s LegalE d u c a t i o n D e p a r t m e n t o n 0131 226 7411.

Professional Competence Course Update

Six New Solicitor-Advocates

JournalNews



ObituariesLEONARD ELLIOT DICKSON,CBE, (retired solicitor), Stirling.

On 24th February 2002 LeonardElliot Dickson, C.B.E., Stirling,formerly partner of and latterlyconsultant of the firm Dickson,Haddow & Co, Glasgow.

AGE: 86ADMITTED: 1947

JOHN BRYCE ADAM,(retired solicitor), Perth.

On 5th April 2002, John BryceAdam, formerly partner to thefirm Kippen, Campbell & Burt,WS,Perth and latterly sole practitioner,Perth.

AGE: 76ADMITTED: 1950

DOUGLAS FINLAY ROSSGRAHAM,WS, (retired solicitor),Edinburgh

On 30th March 2002, DouglasFinlay Ross Graham,WS, formerlypartner of the firm Cuthbertson,Riddle & Graham, Edinburgh, andRussel & Aitken, Falkirk, and latterlyconsultant to the firm Russel &Aitken.

AGE: 82ADMITTED1948

SpecialistAccreditationsThe following have beenaccredited as specialists in Trust Law

Robin Fulton,Turcan Connell, Edinburgh

Eilidh Scobbie,Burnett and Reid, Aberdeen

Nicholas Barclay,Thorntons, Dundee

Alexander McDonald,Thorntons, Dundee

New Library Signals Shift from Old to NewTechnology for The Royal Faculty Of ProcuratorsThe Royal Faculty of Procurators in Glasgow hasrelocated its library within Glasgow Sheriff Court andhas taken the opportunity to place an increasedemphasis on the deployment of new technology.Commenting on the move, Raymond Williamson, Dean

of the Royal Faculty of Procurators and senior partnerof MacRoberts, Solicitors, said, “We are delighted withthe location of our new library and would like toexpress our thanks to the Sheriff Principal for making thespace available to us. We have replaced many of thedusty tomes from our former site with the latest online

information technology as this has become the mainmeans by which practising lawyers source and retrieveinformation.”Officially opening the new library, Edward F Bowen QC,Sheriff Principal, said,“I’m very pleased to have been in aposition to make this space available to the library of TheRoyal Faculty of Procurators. Its relocation to the SheriffCourt should help ease the access to the informationrequired by practising solicitors. Many things have beenlaunched on the banks of the Clyde, but this is perhapsthe first library!”

Legal Aid Practitioners will have received the recentguidelines from the Scottish Legal Aid Board on thecomplex issue of property recovered or preserved.While the Board guidelines are clearly of assistance inconsidering the issues arising, the Society’s Legal AidCommittee wish to remind solicitors that the issue ofwhether property has been recovered or preserved isultimately a matter of law.

Practitioners who disagree with an interpretation of thelaw by the Board in a particular case have a duty toadvise their client as to the position and as to theremedies available to dispute the Board’s interpretation.If the client does not wish to pursue any dispute thenthat should be recorded on the file and practitionersmight also find it prudent to confirm this in writing tothe client.

Legal Aid - Property Recovered or Preserved

Solicitors Willing to Take Referrals in the Areas of Incapacity,Disability and Mental Health LawIn the January edition of theJournal, the Society’s MentalHealth and Disability Committeeasked all those solicitorsinterested in taking referrals in theareas of incapacity, disability and

mental health law to complete apro forma and return it to theSociety. The Committee isdelighted with the very positiveresponse which it has receivedfrom the profession and work is

ongoing to ensure that thed a t a b a s e t o p r o v i d e t h i sinformation to the public is up andworking shortly. Thank you fortaking the time to complete theseforms.

Incidental Investment Business CertificatesThere has been a delay in the issueof Incidental Investment BusinessCertificates to firms licensed forthis work. The delay is due toongoing discussions with other

professional bodies and theFinancial Services Authority on apossible common form ofnumbering for firms which arelicensed for incidental investment

business. It is anticipated that thesediscussions will be finished overthe course of the next 2 monthswith the Certificates issued by theend of July.

JournalNews


Subjects which have as one of their boundaries anatural water feature (such as a river, loch or thesea) present a number of difficulties within thecontext of land registration. These difficulties arediscussed in some detail in the Registration ofTitle Practice Book (second edition) at paragraph6.99 et seq. On the one hand, the Keeper has aduty under the Land Registration (Scotland) Act1979 to issue registered titles whose boundariesare guaranteed within the level of accuracy of theOrdnance Map. On the other hand, where titlesare bounded by a natural water feature, the lineof the title boundary may be open to more thanone interpretation. More importantly, the naturalfeature may be susceptible to permanent changeor seasonal fluctuation; this may or may not havean impact on the title boundary, depending onwhether the change results from alluvio, avulsioor some other cause.The Practice Book sets out guidelines for theKeeper to apply in relation to natural waterboundaries. The guidelines include a series ofoptions to be adopted by Land Register staff inindividual cases, together with a list of factorswhich will be taken into consideration.Unfortunately, it has become apparent that the

guidelines require the Keeper’s staff to makeassessments which they are not best placed tomake ( e.g. whether a boundary is likely to besusceptible to alteration and – if so – whetherthat alteration is likely to result from alluvio orfrom some other cause ).The guidelines were approved by the JointConsultative Committee of the Registers ofScotland and the Law Society of Scotland, whichhad agreed that there would be a need tomonitor and – if necessary – to adapt the policy.The Joint Consultative Committee has nowreconsidered the policy and has agreed newguidelines for Land Register staff to follow.Theseguidelines are simpler for both the Keeper’s staffand the legal profession to understand and apply.The Keeper believes that they represent areasonable balance between the assumptions ofproperty law and the need for accurate andreliable registered titles.The new policy has two main strands. Firstly, theKeeper will map registered titles adjacent to orincluding part or all of a natural water feature(including foreshore) in such a way that the rededge 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 theindex map will always reveal a registered titlewhich may include the area searched. Secondly,indemnity will be excluded in respect of theimplications of movement of the boundaryfeature. This is designed to allow the Keeper totake advantage of the rectification provisions inthe 1979 Act where alteration of a natural waterboundary leads to a change in the legal titleextent, either before or after first registration.Thispolicy will be applied by Land Register staff in allapplications for first registration or transfer ofpart received by the Keeper after 20th May 2002where one or more of the boundaries is orincludes a natural water feature.The Keeper will, of course, apply the policy in thelight of the full circumstances of individual cases.Solicitors who are unsure as to how the newpolicy might impact on a prospective applicationfor registration are therefore invited to contactthe Pre-Registration Enquiries Section of theRegisters of Scotland at Meadowbank House,153 London Road, Edinburgh, EH8 7AU – DX555400 Edinburgh 15 – LP 55 Edinburgh 5 –Direct line 0845 607 0163.

Natural water boundaries and the Land Register

Authors WantedThe Society has a joint booksagreement with the publishers

Butterworths, the express purposeof which is “to ensure that therecontinues to be made available tothe Society’s members and thelegal profession in Scotland a

range of books and publicationson

Scots law and legal practice andrelated subjects.”

The Society and Butterworthswould welcome suggested book

topics and authors willing to writeunder the joint books programme.All suggestions should be sent to:

Carole Dalgleish, CommissioningEditor (Scotland), Butterworths,

4 Hill Street, Edinburgh EH2 3JZ or DX ED 211

or e-mail Carole at

[email protected]

JournalNews



Renfrewshire Council is the firstcouncil house sales team inScotland to be awarded theprestigious Charter Mark award

recogn is ing improvement andexcellence in the delivery of publicservices.

The team, part of the legal services

section, was presented with theaward by Lord Macdonald inLondon.

The Charter Mark processmeasures elements of the serviceprovided against ten criteria,including being open and providingfull information, consulting andinvolving others, using resourceseffectively, innovating and improvingand providing user satisfaction.

David Sillars, the Council’s Head oflegal Services, said: “The team havedone exceptionally well to win thisaward. They make every effort toassist a large number of tenantsmaking the most importantpurchase of their lives.”

Resumption Practice Note No. 5The 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 resumptionapplications 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).

CorrectionThe by-line which appeared withthe article on special educationalneeds on p 50 of last month’sJournal incorrectly designatedDinah Aitken as Children inScotland’s solicitor. Thebiographical details at the foot of the article are correct.

Readers’surveywinnersBeverley Klein ofLindsays inEdinburgh is thefirst prizewinnerfollowing ourreaders’survey inMarch. She wins aweekend for two at the St Andrews Bay Golf Hotel andSpa. Second prize of £100 worthof Oddbins vouchers goes to Ivan Ralph of Blair Cadell, also in Edinburgh.Thank you to allwho took part.

Well, it’s yours to win in our prize

draw for those who take the time

to complete and return our

Journal questionnaire. Everyone

who completes a questionnaire

will automatically be entered

in the draw.The top prize includes dinner, bed

and breakfast at the £50 million

hotel and golf resort with its

breathtaking views overe St Andrews Bay to the Home

of Golf.The winners will also receive a

complimentary round of golf over

the new St Andrews bay course –

The Torrance Course – and be

able to use the Hotel’s extensive

spa facilities.A prize of a voucher to Oddbins

valued at £100 is also on offer to

the person whose name is drawn

second from the hat.Please simply complete the

questionnaire and return it to us

here at the Journal offices in the

pre-paid envelope supplied.We will announce the names of

the winners in the April edition of

the Journal.Thank you for taking the time to

complete the questionnaire and

the best of luck in the prize draw.David CameronEditor

READERS’ SURVEYHow 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?

WIN a weekend fortwo at St Andrews

Bay HotelWIN £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’ SURVERY ■ READERS’ SURVERY ■ READERS’ SURVERY ■ READERS’ SURVERY

Yacht Club sets sail

Charter Mark first

Members of the Law Society of Scotland Yacht Clubare participating in the Round Mull Race from June28th to 30th.

The event will be the club’s inaugural sailing event andberths should be available on participating yachts.

The race organised by Oban Sailing Club is a

combination of racing and socialising, starting atmidday in Oban, the legs being Oban to Tobermory,Tobermory to Bunessan and Bunessan to Oban.

Please contact Sandy Reid if you are interested inparticipating. He can be contacted on tel 0141 2216551, fax 0141 204 0507, e-mail [email protected]

Small claims and summary causesThe new Rules for both SmallClaims and Summary Causes havenow been published and areavailable from The Stationery Officeat a cost of £9.00 and £13.50respectively. The Rules will comeinto force on 10 June and, as can beseen from Sheriff Stewart’s articleslast month and this month, contain a

number of significant changes. Thefees for Summary Causes will alsochange significantly at the same time.The Judicial Procedure Committeeare holding a series of seminarsthrough Update on the new Rulesand the new fees, and the first ofthese 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

R i t c h i e , S e c r e t a r y t o t h e

Committee, encourages Civil Court

p r ac t i t ioner s to a t tend these

Roadshows.

Introduction to EC lawThe Academy of European Law, based in Trier inGermany, is once again organising a summer course onEuropean law. This is the 10th such course and will runfor a week (1st-5th July). The course aims to givelawyers in their first practising years the opportunity togain an understanding of the basic principles and sourcesof Community law as well as such important areas ascompetition law, private international law, intellectualproperty, environmental, justice and home affairs, and

human rights. In addition, the course offers a trip to theEuropean Court of Justice in nearby Luxembourg aspart of the curriculum.

For further details on the course or to register, see theAcademy of European law website(http://www.era.int/www/en/c_978.htm) or contactNathalie Dessert at the Academy ([email protected];tel: + 49 651 93737 21; fax: + 49 65193737 90).

Write to:

The Editor,The Journal,

Studio 2001, Mile End, Paisley PA1 1JS

f: 0141 561 0400


JournalLetters


Concerns over PCCT r a i n e es o l i c i t o r swho begantheir trainingc o n t r a c t swithin thelast year are

the first trainees in Scotland toundertake the new ProfessionalCompetence Course. From nowon, it will be obligatory for traineesto undertake such a course at theend of their first year.

The course is designed to be anintensive two week course, whichsupplements and supports thetraining received by trainees whilstworking for their firms. At the endof their second year, trainees willalso be required to sit a Test ofProfessional Competence, which isapparently designed to root outthose who are not sufficientlycompetent to practise and,therefore, to confirm that thosewho pass have attained anacceptable level of competencyduring their training.

Unfortunately, in recent months,the Scottish Young LawyersAssociation has learned of thegrowing concerns of first yeartrainees about these new featuresof their training. In par ticular,trainees are confused andconcerned about the PCC; itsm e a n i n g , p r a c t i c a b i l i t y a n dnecessity.

In order to establish the nature andextent of these concerns, the SYLAsent out a questionnaire to over100 first year trainees. Thequestionnaire asked 19 wide-ranging questions, embracing suchissues as: the level of informationreceived about the PCC and fromwhom it was received, problemsinvolved in booking a place on adesignated PCC and the perceivedobjectives of the PCC.

Of the 66 replies received, morethan three-quarters of therespondents were very concernedabout the lack of generalinformation they had received,either from the Law Society or theiremployers about the PCC. Indeed,over half had not received any up todate information, either from theiremployers or the Law Society.Theinformation which they hadreceived was of poor quality. Manyrespondents found themselvesneeding to be proactive, gleaningsome information from the LawSociety website (which apparentlyrequires radical updating).

Many respondents stated that theywere unclear as to the PCC’sobjectives. Many also stated thatthey did not think that the PCCwould provide training of anybetter quality than they hadreceived either from the Diplomaor from their day-to-day training.Over half of the respondents felt

that the PCC would not bebeneficial to their training. In fact,one respondent made the pointthat the PCC was merely a new“buzz word”.

T h e r e s p o n d e n t s we r e a l s oconcerned about the stage oforganisation of the impending PCC.Only half of all respondents hadb e e n a b l e t o d i s c u s s t h earrangements for their attendingthe PCC. Worryingly, 54 out of the66 respondents had not yetsecured a place to attend anaccredited PCC. Dundee Universityhas withdrawn its application fora c c r ed i t a t i on and Abe rdeenUniversity will only be providingtwenty places at any one time.Accordingly most respondents feltthat matters such as travel andaccommodation costs had not beentaken into consideration. Manyrespondents did not know whetheror not their employer would pay fort h e c o s t o f t r a v e l a n d / o raccommodation.

Whilst we do not claim that thesample taken is representative of allfirst year trainees it, at the veryleast, provides an indication as tothe current state of awareness ofand preparation for the PCC. Wefeel that the Society must issuefurther guidance on an urgent basis.

Marcus Whyte,Committee Member on behalf of the

Scottish Young Lawyers Association

Extra judicialsettlementfeesI want to alert readers to theposition of Glasgow City Councilin relation to settlement ofreparation claims. It appears thatunlike every other major localauthority and insurer, GlasgowCouncil do not pay extra judicialsettlement fees when settlingclaims.They consider that it is amatter of their discretion andthey will also frequently not alertsolicitors to the fact that this istheir negotiating position whenacknowledging receipt of lettersof claim. In the circumstancessolicitors may wish to considerwhether it is worth negotiatingwith this Council or litigatingimmediately.

David Sandison,Lawford Kidd, Edinburgh

May I use the columns of your esteemed publication to draw to the attention of the profession a newand worrying addition to the pressures which afflict our daily efforts.Today, a client threatened me withthe Legal Omnibus (sic).

Come oan, get aff !

Doug Winchester,Winchesters, Aberdeenshire

JournalLetters


No increase in funding commitmentWe are pleased to note that our letter published in theMarch issue of the Journal elicited responses from IanSmart as convener of the Legal Aid Committee andAlex Quinn, Law Accountant.

Disappointingly, neither correspondent seeks to addressthe key issue which is the complete absence of anycertainty of funding to meet the profession’s aspirations.

By his own admission Mr Quinn has given this area littlethought. Mr Smart suggests that savings in other areas“should” provide scope for an improved level ofremuneration. There is, however, little publishedevidence to support this somewhat vague andunconvincing assertion. Indeed, the Deputy FirstMinister has recently announced a number of measureswhich will have the effect of widening and deepeningthe current legal aid system, with consequent pressureson the existing funds.

Ironically, during the very week in which Mr Smart’sletter appeared, the adviser to the Justice 1 Committeeremarked in paragraph 17 of the scrutiny of the budgetprocess “fees for civil legal aid remain frozen and thereis no evidence in the budget of any anticipated increasein expense in the legal aid area” and “the Minister for

Justice indicated that he was not ruling out an increaseand was meeting with the tripartite body to discusssuch matters. There appears to be no budgetaryprovision for any increase”.

In short, the law accountants remain of the view that, atthe moment, there is no “prize”, to use Mr Smart’sterminology, and the profession are being asked toaccept a whole new raft of administrative layers of legalaid bureaucracy without any real increase in fundingcommitment. Significantly, the adviser’s report for 2003also confirms a 22% real term increase in theadministrative budget of the Legal Aid Board based onthe 2000/2001 constant and a 4.1% real reduction inpayments to the profession as part of the frozen overallbudget.

Would it not be considered incompetent for a solicitorto advise clients to involve themselves in a process inwhich the other party did not appear to have thewhere-with-all to fulfil his part of the bargain? Why thenshould the profession be asked to engage in just a sucha process?

Alastair Greig, Law Accountant, Edinburgh, on behalf of thelaw accountants listed on p14 of The Journal in March

Intimations for the people section should be sent to:

Denise Robertson, Record Dept, Law Society of Scotland,

26 Drumsheugh Gardens, Edinburgh EH3 7YR


ADAIRS, Dumbarton, are pleasedto announce that with effect from1st May 2002, their associate, JackScott Adair, has been assumed as apartner in the firm and that theirassistant, Jill Glen Allan Foggo, hasbeen appointed as an associate ofthe firm.

Robert J Arbuthnott and CatherineMcClanachan are pleased toannounce that with effect from29th April 2002 they practiseunder the name ofARBUTHNOTT &McCLANACHAN, Solicitors andEstate Agents, from 77 Main Street,Davidsons Mains, Edinburgh.

BLACKWOOD & SMITH,WS,Peebles, are pleased to announcethat with effect from 1st April2002 their assistant, Sally AnneSwinney, has been appointed as anassociate of the firm.

Dorothy J Amos intimates herresignation as Private Clientassistant and Practice Manager atMcVIES,WS, Haddington, and that,with effect from 1st January 2002,she commenced practice as aspecialist in executryadministration. She can becontacted at BORTHWICK BELL,3 Chapel Mains, Blainslie, GalashielsTD1 2PN, telephone/fax 01896860700.

BOYDS, Glasgow and Edinburgh,are delighted to announce theappointment of Emily Wiewiorkaas a partner. Emily has been withthe firm for just over a year andshe is Head of BOYDS’ IP/IT Unit.She was formerly with MASONS.

BRODIES, Edinburgh, isdelighted to announce two newbanking appointments to the firm.With effect from 1st April 2002,Bruce Stephen has been assumedas a partner. Bruce heads up thebanking group and joins fromTODS MURRAY, where he was

also a partner. Derek Arnott,former Head of Group LegalServices at THE ROYAL BANKOF SCOTLAND GROUP, joinsthe firm as a consultant witheffect from 15th April 2002. Hebrings 30 years top-levelexperience of the financialservices sector to the banking andcorporate clients of the firm. Thefirm is also pleased to announcethat Jennifer McWilliams, formerlyof MACLAY MURRAY &SPENS/MACKAY SIMON, hasjoined the employment team asan associate.

BURNETT & REID, Aberdeen,intimate that their partner RogerLawrence has retired from practicewith effect from 31st March 2002.

CLARK BOYLE & CO, Glasgow,are pleased to intimate that witheffect from 13th May 2002 theywill have relocated to 33A GordonStreet, Glasgow G1 3PF. The restof their contact details remain thesame.

THE COMMERCIAL LAWPRACTICE LLP, Aberdeen, arepleased to announce that, witheffect from 15th April 2002, theirassociate, Keir Willox, has beenappointed as a member of theLimited Liability Partnership andthat their assistants, Fiona J Mitchelland Anne M O’Neill, have beenappointed as associates from thatdate.

DREVER & HEDDLE, Kirkwall, arepleased to announce that witheffect from 1st April 2002, theirassistant, Michael Sydney WilliamScott, has been appointedassociate of the firm.

Jane Rattray and Lesley McFall(formerly of BLACKLOCKTHORLEY, Leith, Edinburgh) andJackie Pringle (formerly ofLOVELLS, Edinburgh) are pleasedto announce that with effect from

8th April 2002 they havecommenced practice under thename of EDINBURGH LAW. Thenew firm is based at Barrie’s Close,1 Parliament Square, Edinburgh,EH1 1RB. Telephone 0131 2206600, fax 0131 225 3444, LegalPost LP-3 Edinburgh 15 and [email protected].

Annabell Fowles intimates that shehas resigned from the SCOTTISHENVIRONMENT PROTECTIONAGENCY to take up appointmentas Head of Legal Services for theSCOTTISH COMMISSION FORTHE REGULATION OF CAREwith effect from 1st April 2002.

ALEXANDER GEORGE & CO,Banff, Buckie and Macduff arepleased to intimate that theirassistant Deborah A.Wilson hasbeen appointed an associate witheffect from 25th March 2002.

D.W. GEORGESON & SON, Wickand Thurso, are pleased toannounce that with effect from 1stApril 2002, Stephen Copinger,formerly an associate of the firm,has been assumed as a partner.

GRIGOR & YOUNG, Elgin andBuckie, are pleased to intimate thatwith effect from 1st May 2002 theyhave appointed Janet Hilary Tayloras an associate.

Linda George and Alexis Hunterare delighted to announce theirpartnership as HUNTERS FAMILYLAW at Muirbrow Chambers,118 Cadzow Street, Hamilton,ML3 6HP, telephone 01698459200, fax 01698 459215 and e-mail [email protected]

INTRABANK EXPERTWITNESS has appointed JohnRobertson, formerly CompanySecretary British Linen Bank, as itsagent in Scotland. He can becontacted at 0131 667 4229 orby fax on 0131 668 1471 or

JournalPeople


Brodies

Derek Arnott

Brodies

Bruce Stephen

JournalPeople


by e-mail at [email protected]. In case ofdifficulty phone 020 7250 3660.Please see Sponsorship stripbelow.

THE KELLAS PARTNERSHIP,Inverurie, are pleased to announcethat with effect from 1st March2002 their assistant, Elizabeth AnnCobban, has been appointed as anassociate of the firm.

KERR & CO, Glasgow and Stirling,are pleased to announce that witheffect from 6th April 2002 theirassociates, Andrew Thomson andAlison Jane Forsyth, have beenassumed as partners of the firm.

LEDINGHAM CHALMERS,Aberdeen, Edinburgh, Inverness,Baku, Istanbul and Falkland Islands,intimates that on 1st May 2002Eunice Margaret McConnach wasassumed as a partner and JoanCatto joined the firm as a partner,both in the Aberdeen office.

LINDSAYS,WS, Edinburgh, wish tointimate that Robert J Arbuthnottand Catherine McClanachanresigned as partners of the firmwith effect from 26th April 2002and with effect from 29th April2002 will practise from the formerLINDSAYS,WS, branch office at 77Main Street, Davidsons Mains,

Edinburgh, under the name ofARBUTHNOTT &McCLANACHAN.

MCCASH & HUNTER, Perth,is pleased to announce thatMargarita Drew, formerly ofDREW-PAUL & MURRAY, hasjoined the firm as a consultantfrom 1st April 2002.

McCLURE AND PARTNERS,currently of 16 Park Circus,Glasgow, would like to announcethat they are moving to newpremises and their new contactdetails as and from Monday 29thApril 2002 are as follows: 2ndFloor,Troon House, 199 St.VincentStreet, Glasgow G2 5QD,telephone 0141 204 0445, faxnumbers 0141 204 6180, 0141204 6181, DX and e-mail addressremain unchanged, namely GW65,Glasgow andmcclurepartners.co.uk

MACDONALD GARVIE, Dundee,and ROLLO, STEVEN & BOND,Dundee, are pleased to announcethe merger of the two firms witheffect from 1st May 2002. Thenew firm is known as RSBMACDONALD and operatesfrom 17/19 Crichton Street,Dundee, DD1 3AR, telephone01382 202025, fax 01382 203201

and at 31 Reform Street, DundeeDD1 1SG, telephone 01382229981 and fax 01382 202233.The partners are John Macdonald,Lesley Macdonald, Derek Duncanand Maureen J. Collison. IanSteven continues as a full timeworking consultant of the newfirm. Andrew Lyall also continuesin a full time working capacity withthe new firm. The firm’s e-mail [email protected]. Thefirm’s web site can be found atwww.rsbmacdonald.co.uk.

MACDONALDS, Glasgow andEast Kilbride, are pleased tointimate that Morag Stuart,formerly of RUSSELLS GIBSONMcCAFFREY, Glasgow, joined thefirm as an assistant in theCommercial Litigation Departmentwith effect from 2nd April 2002.

ALLAN MCDOUGALL & CO,SSC, Edinburgh, Penicuik andDalkeith, intimate the retiral fromthe firm of Elizabeth AnneMacdonald Maciver on 31st March2002. They also intimate that from1st April the name of the firm isALLAN MCDOUGALL and thefirm continues to operate from theexisting offices. They alsoannounce the assumption as apartner of Fiona Robertson Hardieon 2nd April 2002.

Photographs of people featured can be sent to:

The Journal, Studio 2001, Mile End,

Paisley PA1 1JS

Intrabank Expert Witness

Ron Gerrard

JournalPeople


MACLEOD & MacCALLUM,Inverness, are pleased to announcethat as from 1st April 2002 KarenElizabeth Cowan and RoderickKenneth MacLean have both joinedthe firm as associates.

McQUITTYS, Cupar, intimate thatwith effect from 30th April 2002George McQuitty has retired fromthe partnership. The business hasbeen acquired by William Wallsand Mr McQuitty continues to beassociated with the firm as aconsultant. The firm name remainsunchanged.

MITCHELLS ROBERTON,Glasgow, intimate that with effectfrom 1st March 2002 theirpartner Craig Dunbar resignedfrom the partnership. He is takinga career break and the partnerswish him well.

The Partners of MORTONFRASER, Edinburgh, are delightedto intimate the assumption ofthree new partners with effectfrom 1st May 2002. They areSusan Younger, John Lunn and InnesClark. They further intimate thatD. John McNeil has retired as apartner of the firm with effectfrom 30th April 2002. He remainsas a consultant to the firm for sixmonths from 1st May 2002.

MOWAT DEAN, Edinburgh, arepleased to intimate that with effectfrom 4th April 2002, Lesley-AnneBarnes was appointed as anassociate of the firm.

GEO. & JAS. OLIVER,WS, Hawick,intimate the retiral of MichaelHenry David Armstrong,WS, as apartner with effect from 31stMarch 2002. John Anthony LindsayOliver,WS, and John PatersonHunter are pleased to becontinuing the firm under the same name.

PAGAN OSBORNE, Cupar,Anstruther, St Andrews, Edinburghand Dunfermline, intimate theretiral as a partner of William Low,with effect from 30th April 2002.Mr Low continues to be associatedwith the firm as a consultant.

PROVEN & CO, Edinburgh, herebyintimate that with effect from 29thApril 2002 they have relocated to8 Manor Place, Edinburgh, EH37DD. The telephone and faxnumbers remain the same:0131 220 6100.

Jane Rattray intimates that witheffect from 31st March 2002, sheresigned as a partner inBLACKLOCK THORLEY, 89Constitution Street, Edinburgh.She has now commenced practicein EDINBURGH LAW, Barrie’sClose, 1 Parliament Square,Edinburgh, EH1 1RB. Telephone0131 220 6600, fax 0131 2253444, Legal Post LP-3 Edinburgh 15and e-mail [email protected].

T.F. REID & DONALDSON,Paisley, intimate the retiral as apartner of Caroline Gillespie witheffect from 15th April 2002.

ROSS ROGERS & CO, Rutherglen,intimate that Stephen McGuire hasresigned from the partnership witheffect from 31st March 2002.

RUSSEL & AITKEN, Edinburgh,Falkirk and Denny, are delighted toannounce that Karen Joan Harvie

has been appointed an associate inthe Litigation Department of theirEdinburgh office with effect from1st April 2002. Karen specialises inEmployment Law.

SKENE EDWARDS,WS,Edinburgh, are pleased to intimatethe appointment with effect from15th April 2002, of Lesley JaneGordon as an associate of thefirm.

SOLICITORS DIRECT, Aberdeen,wish to intimate their change ofaddress from 47 Albert Street, tonew premises at 4 Golden Square,Aberdeen, AB11 6DA. The firm’sDX number and contacttelephone numbers will remainunchanged.

WRIGHT, JOHNSTON &MACKENZIE, Glasgow andEdinburgh, are delighted toannounce the appointment of sixnew partners. Clare Neilson,Yvonne Dunn, Donna Kelly, LindsayKennedy, Gail Donaldson and LiamEntwistle, who have all beenassociates with the firm.They havebeen assumed as partners from 1st April 2002.

Wright, Johnston and Mackenzie

Top row:Yvonne Dunn, Lindsay Kennedy, Donna KellyBottom row: Clare Neilson, Liam Entwistle, Gail Donaldson

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

JournalOpinion


Sleeping withthe enemy

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: “Theonly safe way to destroy your enemy is to make himyour friend”. Whether on a local or international level,this seems easier said than done.“An eye for an eye andwe all go blind,” reflected Mahatma Gandhi. As lawyers,can we preserve the vision shown by our predecessorsLincoln and Gandhi?Nelson Mandela once said: “I never sought toundermine Mr de Klerk, for the practical reason that theweaker he was, the weaker the negotiations process.Tomake peace with an enemy one must work with thatenemy, and the enemy must become one’s partner.”The history of Mandela’s application of this theory is therecent history of South Africa. As the two sides to theapartheid conflict came together, they realised that theirperceptions of each other were wrong. They came tosee that there was an alternative to a white victory or ablack victory – or even a split-the-differencecompromise.There was a future in which to win did notmean that the other side had to lose. It was possible forall sides to benefit. Hard work and difficult, yes, but muchless 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 tobe much more creative in our approach to conflict,whether in personal relationships, in business andcommerce or in world politics. Ury identifies trendsthroughout the world in which a transformation of theculture of conflict is occurring, from coercion to consentand from force to mutual interest.I saw tangible evidence of this at the recent AmericanBar Association conference on Dispute Resolution inSeattle. There is a cultural wave sweeping through thelegal profession and government bodies in the US.Thelawyer’s job, as the Attorney General for WashingtonState put it, is about solving average problems foraverage people, not winning or losing – andremembering that there are two sides to almost anystory.Her own example was a remarkable one. The recentmediated settlement of litigation brought collectively bythe various States against the tobacco industry resultedin an “holistic” solution, viewed by parties as a mutuallysatisfactory outcome. A rigorous approach to the issues

wa s a c compan i e d by i n c r e a s ed r e s pe c t a ndunderstanding on all sides, producing a speedy, wide-ranging resolution of what could have been interminableconflict.

In negotiation and mediation training courses, I ofteninvite participants to take part in The Gain Game, aversion of a game called The Prisoners’ Dilemma.Participants learn how easily we become competitiveand seek to requite the other side for wrongs allegedlydone. Trust is easily broken, and once lost is hard toregain. The urge to win at the expense of the other isstrong for many. Language (careful and careless) sendsmessages which are easily misunderstood. Respect forthe other side is replaced by antagonism. Only at theend do many discover that apparent victory can bepyrrhic and bitter-sweet, producing a relatively poorimmediate outcome and an even poorer prospect ofsuccessful negotiation in the future.

The perceptive players learn early (or throughexperience) that working collaboratively with the otherside will often (nearly always) produce a better result,not only for themselves and their client but also for theother side. And it doesn’t matter if the other side alsogains! Indeed, that may be the key to getting what eachside really wants.

The concept of “joint gain” is often a difficult one tograsp in our adversarial tradition. And yet, as Edward deBono has pointed out, argument which merely seeks toprove that one side is right and the other side is wrongcan be extremely inefficient.Working co-operatively (orin co-opetition as de Bono has described it) cangenerate quite novel outcomes in many conflicts. Often,however, we are constrained by our training andeducation, by our culture and work pressures, fromthinking “out of the box”.

Business and commerce is moving on. Individuals areless likely to accept things as they always were.The roleof the lawyer in society is under scrutiny. Paradoxically inour rights-based culture, the future for many morelawyers is likely to be in the role of creative problem-solvers, or “solution-seekers”, assisting clients to achieveco-operative results which meet real interests ratherthan vindicating positions or rights. And we will find thatco-operation can be contagious. [email protected]:

JournalIntermediate Diets


No compelling groundsfor retrospective legislation

The 8th of March saw royal assent being grantedto the Criminal Procedure (Amendment) Act20021. It is a statute that has been passed throughthe Scottish Parliament with considerable hasteafter the Court of Criminal Appeal decision inReynolds v Procurator Fiscal, Linlithgow. But doesit put to rest the decision in Reynolds?

Reynolds CaseFor those not entirely familiar with the facts ofthat case, Mr Reynolds appeared on complaint,pled not guilty and was liberated pending furtherprocedure. Intermediate diet and trial diet werefixed. Mr Reynolds failed to appear at theintermediate diet. As was usual, a warrant for hisapprehension was granted, but the trial was notexplicitly discharged. The trial date came andwent. Subsequently, Mr Reynolds was arrested inpursuance of the warrant, appeared in court andmaintained his not guilty plea, intermediate dietand trial diet were fixed.At the intermediate diet,a plea was taken to the competency of thecomplaint.

The defence position was that the instance hadfallen when the case had not been called on thefirst trial date, a duly assigned diet in the case.Thecrown’s position was that, by implication, thegrant of the warrant discharged the diet. Thesheriff agreed with the crown, though granted thedefence leave to appeal.The defence appeal wassuccessful. Failure to discharge the trial dietexplicitly when granting a warrant at theintermediate diet meant that when the case didnot call on the trial date the instance fell.

The decision in Reynolds meant that ongoingprosecutions for individuals who had failed toappear at an intermediate diet were in jeopardy.But the real sting in the tail of the Reynolds caseis acknowledged within the 8th paragraph of thecourt’s judgment, when considering whether thetrial date was a pre-emptory diet, the courtstates:

In Hull v HM Advocate 1945 J.C. 83 the LordJustice-Clerk (Cooper) stated (at page 86) asfollows:

“It is a cardinal rule of our criminal procedurethat a criminal diet is, and must be made,peremptory, and that, if the diet is not called orduly adjourned or continued on the date in thecitation, the instance falls (Hume, vol. ii, 263, 264;Alison, vol. ii, 343, 344; Macdonald, (4th ed), 471).The rule has again and again been rigorouslyenforced, its non-observance being treated asinvolving a fundamental nullity requiring that anyconviction which has followed should bequashed.”

Complaints not called are null, not incompetent.There is no need to advance any sort ofpreliminary plea. Clearly this would have adramatic effect on a large number of convictions,opening them to challenge by bill of suspensionor, for sentences already served, by application tothe Scottish Criminal Cases Review Commissionseeking a referral of the case to the appeal court.

The LegislationS e c t i o n 1 o f t h e C r i m i n a l P r o c e d u r e(Amendment) Act provides that there beinserted in the Criminal Procedure Act 1995 atthe end of section 150:

“(3A) The grant, under subsection (3) above, atan intermediate diet of a warrant to apprehendthe accused has the effect of discharging the trialdiet as respects that accused.

(3B) Subsection (3A) above is subject to anyorder to different effect made by the court whengranting the warrant.”

The section provides, importantly, that thisamendment shall be regarded as having alwayshad effect.

The section makes similar provision in respect ofs338(1) of the 1975 Act, though only back-datesthe amendment to the coming into force ofsection 15 of the Criminal Justice (Scotland) Act1980, the section that introduced the presentsystem of intermediate diets.

Section 2 provides for section 1 to take effect theday after royal assent. As stated, royal assent wasreceived on 8th March 2002.

The point to note is that this legislation isretrospective. Although there have been verysimilar pieces of retrospective legislation before –the Criminal Procedure (Intermediate Diets)(Scotland) Act 1998 being a notable example –these were passed by the WestminsterParliament, not the Scottish Parliament. Acts ofthe Scottish Parliament, of course, are subject tobeing struck down under the Scotland Act if theyare incompatible with Convention rights.

Retrospective effectIn the latter part of last year, the Privy Councilmade a decision on the first act of the ScottishParliament, a retrospective piece of legislation. Inthat case, A v The Scottish Ministers (PC) 2001SLT 1331, the Privy Council accepted thatretrospective legislation by the ScottishParliament was not necessarily incompatible withhuman rights.

So if the Privy Council accepts retrospectivelegislation and the Scottish Parliament has passedan act to reverse the decision in Reynolds has theReynolds case been consigned to history almostas soon as it was decided?

Although in A v The Scottish Ministers there wasauthority from the Privy Council to the effect that

Legislation to plug the loophole

on intermediate diets could

itself be open to challenge,

writes David Leighton

JournalIntermediate Diets

retrospective legislation was notbeyond the competence of theScottish Parliament that was a verydifferent case to Reynolds. A v TheScottish Ministers dealt with theMental Health (Public Safety andAppeals) (Scotland) Act 19992,which was brought into effect todeal with the repercussions of thehigh-profile Ruddle case.

The two principal judgments in A v The Scottish Ministers (PC)2001 SLT 1331 are delivered byLord Clyde and by Lord Hope. Bothof them cite with approval andwithout caveat the cases ofNational & Provincial BuildingSociety v United Kingdom 1997(25) EHRR 127 and Zielinski vFrance (1999) 31 EHRR 19. Thesecases are both markedly against anyi m p o s i t i o n o f r e t r o s p e c t i v elegislation. Retrospective legislationmust be treated with “the greatestpossible degree of circumspection”– National & Provincial BuildingSociety v UK p181 para 112.And, ina passage quoted by Lord Hopefrom Zielinski v France para 57:“The court reaffirms that while inprinciple the legislature is notprecluded in civil matters fromadop t i n g new re t r o s pe c t i veprovisions to regulate rights underexisting laws, the principle of therule of law and the notion of fairtrial enshrined in article 6 precludeany interference by the legislature –other than on compelling groundsof the general interest – with theadministration of justice designed toinfluence the judicial determinationof a dispute”.

A v T h e S c o t t i s h M i n i s t e r sconcerned a very limited number ofindividuals who in the words ofLord Clyde at 1346 D: “hadcommitted crimes of the mostserious kind, including in particularhomicide, and had a history ofmental disorder which might beheld to be untreatable. As the lawstood these persons would beentitled to be discharged into thesociety of others giving rise to apotentially serious danger for thosewho came in contact with them.”And in the words of Lord Hope at1340 F: “The purpose of the 1999Act was to protect the public …from lethal attacks by mentallydisordered persons with a priorhistory of committing homicide

w h o s e m e n t a l d i s o r d e r w a sregarded as untreatable”. In thecircumstances of this case, the courtwas willing to rule that theretrospective legislation was notincompatible with the convention.

Compelling Grounds?So are there compelling grounds ofthe general interest that require theCriminal Procedure (Scotland) Actto be retrospective? If anyonechallenges the legislation then theJudicial Committee of the PrivyCouncil will probably decide thequestion, on appeal from the Courtof Criminal Appeal.

Some possible arguments in favourof compelling grounds include:

1 that there are a large number ofcases involved and striking at theact is likely to increase theworkload of the court systemconsiderably, and

2 that individuals manifestly guiltyof offences would be acquitted.

Some possible arguments againstcompelling grounds include:

1 the cases involved, by their verynature, cannot be that serious –they were all raised as summarycomplaints,

2 m o s t s e n t e n c e s f o r t h e s econvictions have already beenserved, and

3 the crown would be able to re-raise proceedings against anyind i v idua l who success fu l l yappealed, so long as the actionwas not time-barred.

As I have said, ultimately anychallenge is likely to go all the wayto the Judicial Committee of theP r i v y C o u n c i l , m e a n i n g aconsiderable period of time beforea decision. A period of time inwhich all manner of things mightoccur, but, at the moment, it isdifficult to see any compellinggrounds for the legislation beingretrospective.

The full text of the Reynolds case is available at

http://www.scotcourts.gov.ukThe full texts of the European cases

are available athttp://www.echr.coe.int/

David Leighton presently works forthe Scottish Executive.

He was formerly employed in private practice in Edinburgh

1 2002 asp 42 1999 asp 1

[email protected]:

JournalRepossession


Of all the matters changed by the Mortgage Rights (Scotland) Act 2001, thatwhich has received the most publicity is how notices will be served. Inparticular, it has been suggested that debtors in arrears can avoidrepossession by simply refusing to answer their door to receive a recordeddelivery notice and cannot then receive service by way of sheriff officer.

A distinction requires to be made between the service of a calling-upnotice, notice of default or court proceedings on the one hand and serviceof notices to occupiers and explanatory notices to accompany courtproceedings on the other. In other words, there is a difference in the law asit applies to the existing forms and procedures to be followed, which havebeen adjusted by the 2001 Act, and the new forms which have beenintroduced by the 2001 Act.

Service of forms adjusted by the 2001 Act and of court proceedingsThe Conveyancing and Feudal Reform (Scotland) Act 1970 provides thatservice of a calling-up notice may be made by delivery to the person onwhom it is desired to be served or the notice may be sent by registered orrecorded delivery post to him at his last known address1. In certaincircumstances, service should be made on the Extractor of the Court ofSession. 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 toproof of service as a calling-up notice.”

In the case of court proceedings under the 1970 Act, they may be servedby the normal rules governing service of writs2. In the case of courtproceedings under the Heritable Securities (Scotland) Act 1894, service ofthe 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

Mark Higgins clarifies whether debtors

can avoid repossession simply

by refusing to accept a recorded delivery notice

Serving noticesunder the MortgageRights Act

JournalRepossession

the 2001 Act, none of the rules onservice detailed above is changed.

It is therefore clear that service ofcalling-up notices and notices ofdefault continue to be governed bythe 1970 Act and that eitherrecorded delivery or personalservice of those notices is entirelycompetent under section 19(6) ofthe 1970 Act. Similarly, as regardsservice of court writs (as opposedto the notices specified toaccompany them), there is nothingin the 2001 Act which precludesservice by the normal servicemethods, including by sheriffofficer4. It is therefore submittedthat it is incorrect to say thatp e r s o n a l s e r v i c e i s n o wi n c o m p e t e n t g e n e r a l l y i nrepossession actions or, indeed, thatthere is any change to the existingmethods of service of calling-upnotices, notices of default or courtproceedings.

Service of forms introducedby the 2001 ActThese forms include firstly each ofthe forms which must be served onthe occupier, namely Forms BB & Fof Schedule 6 to the 1970 Act andForm 2 of Part 2 of the Schedule tothe 2001 Act. Secondly, the formsinclude the forms which must bes e r v e d a l o n g w i t h c o u r tproceedings, namely Form E ofSchedule 6 to the 1970 Act andForm 1 of Part 2 of the Schedule tothe 2001 Act.There are in fact threearguments as to how service ofthese notices should be effected,each of which is considered below.Given the confusion which hasarisen over this issue, it is worthrepeating the relevant statutoryprovisions in full.

The first argument is based on aliteral reading of the new provisionsin relation to service, inserted intothe 1970 Act by the 2001 Act.Section 24 of the 1970 Act nowprovides:

“(3) Where the creditor applies tothe court under subsection (1)above, he shall…■ serve on the debtor and (where

the proprietor is not thedebtor) on the proprietor anotice in conformity with FormE of Schedule 6 to this Act, and

■ serve on the occupier of thesecurity subjects a notice in

conformity with Form F of thatSchedule.

(4) Notices under subsection (3)above shall be sent by recordeddelivery letter addressed-

■ in the case of a notice undersubsection (3)(a), to the debtoror…proprietor…

■ in the case of a notice undersubsection (3)(b), to ‘TheOccupier’…”

The argument goes that as the Actsimply requires the notices to besent by recorded delivery, thecreditor does not require toestablish receipt by the debtor,whether through the recordeddelivery service or otherwise. Thecreditor fulfils his requirementsunder the Act when the letter issent.This argument is supported byCathie Craigie5 and by the ScottishExecutive.

This argument is an attractiveproposition on a reading of s24(4)but matters are complicated by themandatory requirement on thecreditor in terms of s24(3) to“serve…a notice”. Nonetheless, it issubmitted that the two subsectionsmust be read together. Doing sosuggests that the method of theservice mentioned in s24(3) is thatprovided for in s24(4).This leads tothe conclusion that a creditor willindeed have complied with hisduties if he simply sends the noticesin Forms E & F by recorded deliveryirrespective of whether actualservice results. The same argumentappears to hold good in relation tothe notice to the occupier whichmust accompany service of acalling-up notice or notice ofdefault.

The effect of the second argument,if it was successful, would be tomake repossession extremelydifficult if a debtor did not answerhis door to accept recordeddelivery packages, or if the debtoror occupier was not present at thesubjects for any reason. The natureof the second argument is simply torebut the premise of the first thatsending the explanatory noticeswhich accompany proceedings orthe notices to the occupier issufficient service. If service cannotbe effected by recorded delivery,the argument goes, it remainsincumbent on the creditor to

JournalRepossession


achieve service. However, as no other method ofservice is competently provided for in the newprovisions, he is unable to comply with his serviceobligation. In the case of a calling-up notice or notice ofdefault, the legislation expressly provides that if acreditor has failed to comply, the calling-up notice ornotice of default are held to be of no effect6. In the caseof court proceedings where, for example, Form F hasnot been properly served on the occupier, theargument would be that the action is premature due tothe failure to serve the mandatory notice.

There is support, below, for the view that no othermethod of service is competent and so the differencebetween the first and second arguments comes to bewhether a creditor has fulfilled his obligations simply bysending the notices whether or not actual serviceresults. The issue cannot be free from doubt but it issubmitted that the first argument is to be preferred forthe reasons stated above.

The third argument, which has also been advanced byMs Craigie and the Scottish Executive, is that thedifference between the first and second arguments isacademic as the Act does not in fact preclude service byother means, as it does not provide that notices may beissued only by recorded delivery post. It is certainly truethat the 2001 Act does not expressly exclude service byother means.

The view that service by sheriff officers remainscompetent has received some support fromcommentators on the Act. Indeed, it appears that thedrafters of the legislation envisaged that service mighttake place in an alternative manner.The new certificateof citation provides that court proceedings may beserved by sheriff officer7 and it may be assumed that theExecutive proceeded on the basis that the courtproceedings would be served at the same time as theexplanatory notices in Forms E & F.While that may wellhave been the state of mind which led to theseprovisions8, it is difficult to interpret “shall be sent byrecorded delivery” as meaning that other methods ofservice are permitted. It is submitted that there isinsufficient ambiguity in the wording which would allowthe courts to give creditors latitude in their choice ofmethod of service.

Further, in Govan Housing Society v Kane9, SheriffJohnston declined to permit service of a notice to quitby any method of service other than those provided forin Ordinary Cause Rule 34.8. It is accordingly submittedthat this argument is wrong and that service of thenotices to the occupier and to accompany courtproceedings is not permitted by sheriff officer10.

Nevertheless, a creditor may take the view that the bestoption is a ‘belt and braces’ approach where, having sentan unsuccessful recorded delivery notice to theoccupier or notice accompanying court proceedings tothe debtor or proprietor, the creditor then has thenotice served by sheriff officer11.

There are attractions to this approach.The creditor hassent the notices by recorded delivery and so, if the firstargument is correct, he has fulfilled his obligations. If it isincorrect, but the third argument is correct, he meets hisrequirements by service by sheriff officer. If the second

argument is correct, he has not validly complied with hisobligations but it would have been impossible to do soand he has at least done all he can to try to bring thematter to the attention of the recipient of the notice.Regrettably, the matter may not be as simple as that. Ifthe second argument is correct, then service of thenotices has not been made and, despite what thecreditor may have tried to do, there may be afundamental problem with his right to proceed further.

If that was all, there might be no real downside in thisapproach, other than the additional cost of sheriff officers.However, serving the notices by sheriff officer where thecreditor is not entitled to do so may give rise to a claimby the recipient that the creditor has wrongfullyinstructed sheriff officers to serve a document on himwhen he has no power to do so. Such service might beargued to be akin to wrongful diligence12 or a breach ofArticle 8 and Article 1 of the First Protocol to theEuropean Convention on Human Rights.

Practical issues of serviceVery often the debtor will be the same person as theoccupier and so the difficulty over service of notices onthe occupier may be overcome if service is made on thedebtor. However, that does not assist in resolving thedifficulties in relation to service of explanatory notices,such as Form E, on the debtor himself.

It is undoubtedly the case that the difficulties over theseprovisions will soon be the subject of court decision. Asservice of the explanatory notice forms whichaccompany court proceedings should be served withthe service copy court papers, a common occurrencewill be that the creditor has both the form and theservice copy court papers returned to him togetherwhere the recorded delivery attempt has beenunsuccessful.

Standing the views expressed above, the appropriatecourse for the creditor to adopt in these circumstancesis to remove the explanatory notice form from thepackage and thereafter have the service copy courtpapers served by sheriff officers, counter-intuitive as thatat first may seem.The alternative, in terms of the thirdargument, is to have all the papers served by sheriffofficers. Even if the explanatory notice (such as Form E)is not served by sheriff officers, the defender will stillhave notice of his right to make an application for aSection 2 Order as the new Form of Citation for suchactions13 makes reference to his ability to do so and theprocedure therefor.

Notwithstanding the difficulties on service, it may bepossible for a creditor to argue that appearance by adebtor or applicant cures any defect in service of thecourt proceedings14. However, if the defect relates toservice of a notice on which the action is based, such aswhere a calling-up notice has been raised and followedby court proceedings related thereto, appearance in thecourt action will not remedy the defect.

Conclusion It is submitted that the creditor fulfils with his obligationsin relation to service on the occupier and service ofaccompanying notices to court proceedings if he sends

JournalRepossession

[email protected]:

the notices by recorded delivery, irrespective of whether actual serviceresults. The alternative for a creditor is to instruct sheriff officers to servethese notices. It is difficult to criticise a creditor who so acts or, standing thegeneral confusion and the view of the Scottish Executive that this is valid, asolicitor who advises his client to proceed in this manner. However, such acourse may give rise to further problems for the creditor and, it issubmitted, does not in fact cure any problems with service.

A rumour was advanced that emergency legislation was being rushedthrough to remedy the alleged defect but that proved to be unfounded.TheScottish Executive has said that there is no difficulty with the currentlegislation and that no amendment legislation is being drafted or indeednecessary. Clearly an authoritative ruling will be required before there is anycertainty.

Mark Higgins, a partner in Golds, has lectured widely on the 2001 Act toamongst others the Council of Mortgage Lenders. He recently chaired The

Mortgage Law Conference 2002 organised by Central Law Training. He is theauthor of Scottish Repossessions, to be published by W Green in May 2002.

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), unlessdeclarator or certain othercraves are sought in which casethe Ordinary Cause Rules apply.

4 Ss.23(4) of the 1970 Act and4(5) of the 2001 Act relate onlyto service of Notices.

5 the MSP who introduced theBill which led to the 2001 Act.

6 s.19A(3) of 1970 Act, dealingwith calling-up notices, which isapplied to notices of default bys.21(2A) the 1970 Act.

7 Form O6 of the First Scheduleto the Sheriff Courts (Scotland)Act 1907 as inserted by S.S.I.2002 No. 7.

8 although the Explanatory Notesto the Act are quite clear thatthe notices “will be sent byrecorded delivery”.

9 6 July 2001 unreported.10 It is true that neither Forms E or

F will form the foundation forthe action (unlike the notice inKane or, for example, a calling-upnotice) but it is submitted thatthe decision in Kane confirmsthat, even for these forms, acreditor may not choose amethod of service which is notprovided for in the Act.

11 It is certainly not appropriate toproceed directly to sheriffofficer without first attemptingrecorded delivery service,

standing the wording ofss.19A(2) and 24(4) of the1970 Act and s.4(4) of the2001 Act.

12 see Maher & Cusine,The Lawand Practice of Diligence, (1sted., 1990), para. 12-18 citingFairbairn v Cockburn’s Trustees1878 15 S.L.R. 705, though inthat case, only nominal damageswere awarded in a situationwhere a party had been ejectedfrom premises under illegalwarrant.

13 Form O5A of the OrdinaryCause Rules in relation toactions under s.24 of the 1970Act and Form 6B of theSummary Applications Rules inrelation to actions under the1894 Act or summaryapplications under the 1970Act, in terms of Rules 34.10(1)of the Ordinary Cause Rulesand Rule 3.4.1 of the SummaryApplications Rules. If theproblem relates to a defect in anotice of default, that may notbe fatal.

14 Macphail, Sheriff Court Practice(2nd ed.), para. 6-04; OrdinaryCause Rule 5.10; butappearance in this contextmeans the lodging of a notice ofintention to defend: Cairney vBulloch 1994 S.L.T. (Sh. Ct.) 37.Accordingly, this argument willnot be open to a creditorwhere the applicant is simplymaking an application for aSection 2 Order.

notes ■ notes ■ notes ■ notes

JournalRights of Audience


AGE 47

CAREER Having trained at the former Glasgow firm ofBrown, Mair, Gemmell and Hislop, joinedMcGrigor Donald as an assistant in 1977 beforebeing assumed as a partner at the age of 25.Best known as a planning lawyer, he covers thecomplete range of commercial cases fromintellectual property to professional negligenceand judicial review to construction.

FAMILY Married to Mary, also a solicitor, two daughtersLindsay and Gillian.

BreakingthemouldScotland’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 nothave been welcomed in some quarters, but Craig Connal’s recentappointment marks the natural conclusion to a process which began in1990 when extended rights of audience were granted for solicitoradvocates.

For a procedure that caused so much angst – speculation suggests that theappointments were delayed by strong resistance from the Faculty to theprinciple of solicitor QCs - Craig Connal doesn’t expect it to make afundamental difference to his career, viewing it more as an “honour”.

“My understanding is that the Bar as a body were very much opposed tothe idea, arguing that the title was their exclusive province, notwithstandingthat a number of solicitors had been appointed QCs in England. We,however, understood that the principle had been accepted when Rights ofAudience were first introduced back in the early 90s.

“I have heard that their opposition is at least partly responsible – though thechange of Lord President was also a factor - for the delay in this list beingissued, which is equally unfortunate for the ten members of the Bar on thelist”, said Craig Connal.

“A number of top QCs, particularly on the civil side, have gone out of theirway to congratulate me. I suspect there are some I know or with whom Ihave worked who have specifically not done so. Others have offeredpersonal congratulations but said they are opposed in principle, which is aperfectly tenable position.

JournalRights of Audience


“ S o m e p l e a s u r e h a s b e e nexpressed that the appointmentwent to someone who is actuallyat the coalface, or as one Juniorsaid to me, someone who hasbeen “up here taking the flak likethe rest of us.”

What was the procedure forbecoming a QC?

“There was no real indication ofwhat one was meant to do. I wasstaring rather blindly into the dark.Essentially it’s a case of applying tothe Lord President with an outlineof one’s history, professionalexperience and names of referees.

“ I assume that previously it was nota very formal process. As the Bar isa rather tight knit community theDean will know all his members,whereas the Law Society didn’t feelable to offer a substantive view onmy merits or otherwise.”

So what difference will QC statusmake to him and his practice?

“In a practical sense little changes.I’m happy to accept work fromwherever it comes if it’s within myareas of interest. I would anticipatemost of my cases would continueto come from McGrigor Donaldwork, but like other solicitoradvocates, if matters come fromelsewhere I’m happy to take themon.

“I’m not anticipating in the shortterm that it will make a hugedifference. It is difficult to knowultimately how client decisions aremade! My best guess is that at one

end of the spectrum of clients areorganisations who aren’t familiarwith litigation but have heard ofQCs, think the label is a special thingand think they should employ one.At the more sophisticated end ofthe legal market, eg. those who havebeen operating in the Englishlitigation field, clients may well takethe tag as an external guarantee ofa certain standing in the profession.In essence it’s a badge of quality forthe firm’s practice.”

For solicitor advocacy in Scotland,it’s something of a fillip. Welcomingthe appointment, President of theSociety of Solicitor Advocates, FrankMaguire said: “This appointmentgives a good message that whatmatters to the public and ourclients is advocacy. This is the first,but there will be more. There arehigh standards of advocacy acrossthe board, many of whom happento be solicitors.”

Craig Connal said: “I hope it mightencourage people who arewondering about solicitor advocacythat it is possible to achieve thisaccolade.”

There has been a suggestion thatthe Faculty lacks specialists and thatin comparison to their counterpartsin England, there simply isn’t thechoice available when instructingcounsel – could more solicitoradvocate QCs rectify that problem?

“The size of the Bar in Scotlanddoesn’t sustain the sort ofspecialisation that exists in England.At the civil bar, there are relativelyfew QCs at the top covering therange of commercial work. Tospecialise very closely there needsto be enough work to justify that.For example, it is arguable there isnow a need for specialists inintellectual property, but five yearsago that wouldn’t have been thecase and very narrow specialisationbrings its own risks.”

The natural next step would beThe Bench. Does Connal harbourambitions in that direction?

“My personal view is that’s aboutten steps too far for theestablishment to contemplate.Naturally like most people I wouldbe very flattered to be asked tobecome a Court of Session judgebut my guess is that while a SolicitorAdvocate will achieve that post, itwill be after my time.

“In the future, when there are an u m b e r o f s e n i o r s o l i c i t o radvocates, one will come throughto become a judge. If you ask mewhere I’d like to be in ten years’time, it would be on my feet in theHouse of Lords defending a case I’dwon in the Inner House.”

Clients may well take

the tag as an

external guarantee of

a certain standing in

the profession

[email protected]:

Journal


Civil Courts

Karl Constructionstrikes 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 reportedat 2002 SCLR 84, Bain v Bain at 2002 SCLR 152,McDougall v Tawse at 2002 SCLR 160, and SempleFraser v Quayle at 2002 SLT (Sh Ct) 33

JurisdictionFollowing Marsh v Marsh 2002 SCLR 84, anotherdecision appears on the question of domicile. InReddington v Riach’s Exr 2002 GWD 7- 212, LordClarke decided that a man was domiciled in England,having acquired an English domicile of choice. He hadbeen born in Scotland. He had travelled extensivelybefore retiring to Scotland thirty years ago. Fourteenyears later he had moved to England on health grounds.Some members of his wife’s family moved there. Hestated that he would not move again and bought aburial plot in England. His wife died there in 1987. Shewas buried there.Whilst he was proud of being Scots hehad 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 bankaccount in Scotland and had his legal advisers inScotland. In 1996 he executed a will in which hedeclared he was of Scottish domicile but also declaredthat he wished to be buried beside his wife. HisLordship decided that the decisive factors were hisintention not to move again and his actings which wereconsistent with that intention. He did not return after hiswife’s death. His intention was to remain in England andaccordingly was domiciled there. The declaration as todomicile in the will was inconclusive and in any eventsimply reflected previous similar declarations inserted inprevious wills.

CaveatsWhilst the decision of K and F Applicants 2002 SLT (ShCt) 38 relates to whether a caveat can be competentlylodged in relation to potential applications for a ChildProtection Order, Sheriff Principal Nicholson, in holdingthat the lodging of a caveat was incompetent, madecertain 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 SheriffCourt and Court of Session rules, caveats could only becompetently lodged in circumstances specified in therules. The Child Protection Order, whilst a protectivemeasure, was, once granted, complete. It accordinglywas not analogous with an interim order. OrdinaryCause Rule 4 specified orders to be granted prior to anotice of intention to defend being lodged. Such noticeshad no place in applications for a Child ProtectionOrder.The European Convention of Human Rights wasof no assistance as it did not require a person to havethe opportunity to present his argument on everyoccasion the matter was before a Court. Provided ahearing within a reasonable time was guaranteed.

Diligence on the Dependence It will come as no surprise that Lord Drummond Young’sdecision in Karl Construction Ltd v Palisade Propertiesplc has been cited in support of a motion to recall anarrestment on the dependence. This happened inDunfermline Sheriff Court recently in Fab-TekEngineering Ltd v Carillon Construction Ltd 2002GWD 13 – 390. In granting the motion for recall of thearrestment Sheriff Forbes saw no reason to differentiatebetween inhibition and arrestment on the dependence.Accordingly the same factors which were relied upon byLord Drummond Young in Karl Construction applied toarrestments.The Ordinary Cause Rules and in particularRules 3.3, 3.5, 5.1.1, and 5.1.3 could be read in such away that a sheriff had discretion in whether he granteda warrant to arrest on the dependence if it was sought.In those circumstances, the Court required in terms ofsection 6 of the Human Rights Act 1998 not to act in away incompatible with a right set out in the EuropeanConvention of Human Rights. Sheriff Forbes furtherindicated that in considering a motion to recall anarrestment on the dependence a Court again wasrequired to avoid acting in a way incompatible with aconvention right. Accordingly in considering such amotion it fell on the arresting creditor to justify thepropriety of the diligence.

Journal


Civil Courts

Minutes of TenderManson v Skinner has appearedpreviously in these articles as thedecisions of Sheriff Horsburgh andSheriff Principal Nicholson havebeen reached. In this case theDefender lodged a tender with thedefences. The case went to proofand after the judgment was issued,the tender was beaten but only bythe operation of time by referenceof the interest accruing on theprincipal sum. The amounttendered was greater than theprincipal sum and any interest,which had accrued thereon at thetime the tender had been lodged.The Second Division of the InnerHouse restored Sheriff Horsburgh’sdecision finding the Pursuer entitledto the expenses up to the date ofthe tender but liable to theDefender thereafter as the refusalof the tender had unnecessarilyprolonged the proceedings. TheInner House decision appears at2002 SLT 448.

Family Actions

In McGurran v McGurran 2002GWD 11- 337 the Pursuer soughtinter alia a non harassment order.The Pursuer had already beengranted permanent interdict inprevious proceedings.The Defenderargued that the present proceedingsfor a non harassment order wereincompetent having regard to theterms of section 8(5)(b)(ii) 0f theProtection from Harassment Act1997 in light of the fact that aninterdict had been granted inprevious proceedings. The InnerHouse came to the conclusion thatthe interdict must have beengranted in the same process inwhich the non harassment order issought. In justifying their decision,

Lord Caplan, in giving the decisionof the division, referred to the word‘subjected’ in the proviso to section8(5)(b)(ii). ‘Subjected to an interdict’is different from ‘subject to aninterdict’. The former relates to theCourt, which by court ordersubjects a person to the terms ofthe interdict. Accordingly thesection relates to the judge makingthe order in the non harassmentprocess not a previous process. Ifthe section was not construed inthat way, it would mean that aperson who held an interdict from aprior process could not apply for anon harassment order. This mightarise notwithstanding the fact that

the behaviour of the other partyhad deteriorated since the grantingof the interdict to such an extentthat a non harassment order wouldthen be appropriate. It was furtherindicated that a non harassmentorder ad interim was incompetent.Further, in deciding whether a nonharassment order was required,regard would be had to what effectthe interdict had on the other party.

Once again the usual caveataccompanies the decisions notedabove. I would also simply remindpractitioners that by the time of thepublication of the next article thenew Summary Cause and Small [email protected]:

Subjected to an

interdict’ is

different from

‘subject to an

interdict

Claims rules will have come intoeffect. At the time of writing thisarticle these can be found in theHMSO web site under legislation.A very helpful article on these rulesby Sheriff Alastair Stewart appearedin Issue 11 2002 SLT and in April’sissue of the Journal. It seems to methat the new rules relating to thefirst calling of the Summary Causerepresent a major change to thepresent procedure. It seems to mefrom reading the article that thefirst calling is similar to an OptionsHearing. However, the sheriff hasadditional powers to ‘seek tonegotiate and secure settlement ofan action’. Further, if the Sheriffconsiders that the claim or defenceis not soundly based in law in wholeor part, then having heard parties,the sheriff may grant decree. Inthose circumstances, the agent whoappears at a first calling has to befamiliar with the case. As SheriffS tewar t conc ludes , a g rea teramount of advance preparation willbe required. Is this likely to happenif the jurisdictional limits remain atthe present levels? In any event is itnot appropriate for the limits to beincreased? In 1976 when SummaryCauses first came into operationthe upper limit was £500. If a similarinflation factor was applied to thatfigure as is often applied toprevious solatium awards, thepresent upper limit would beconsiderably higher than £1500.Should cases valued at a little over£1500 have an automatic right tobe litigated in the Court of Session?Further, presumably the table offees as they relate to SummaryCause actions are being looked atas it appears that in the same wayOrdinary actions became frontedloaded after 1st January 1993, soSummary Causes will fall into line.

JournalInterview


While it’s not really the done thing to discuss someone’s salary, in DuncanHamilton’s case it’s an unavoidable discussion point following on from hisrecent decision not to stand at next year’s elections for Holyrood in orderto pursue a career in law.

And as it’s a matter of public record, broaching the subject isn’t entirelyimpertinent. 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 bysome lavish expenses) to return to university and undertake the Diplomain Legal Practice, followed by two years employed at the still notoriously lowtrainee salary.

It’s either a shocking indictment of the Scottish Parliament or strikingtestimony 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 ifanyone was in any doubt about my professional commitment to becominga lawyer, they need only look at the financial hit I’ll be taking. I’m notsomeone who is massively motivated by money, I’m more interested inhaving a fulfilling and satisfying career and for that reason I think the rightmove is to go into law”, said Hamilton.

Still, Hamilton’s record of prodigious achievement suggests it’s unlikely he’lllive in penury for long – and a career in Opposition probably has limitedappeal.

“It will take a while for my career to get up and running, and I’m under noillusions about how difficult it will be. It’s not, as some have suggested, adesire 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 momentouspersonal decision?

“I have been through a process of trying to establish what is the best optionfor the future and establish more of a real life base as opposed to theinstitutionalised, slightly unreal world of the Scottish Parliament. In doing thatI’ve had a long-term attraction to the law, which is why I did the two-yearLLB at Edinburgh after graduating from Glasgow. It was always my intentionto go back to the law at some stage.The advice I have taken from friendsand colleagues is that a legal career is still one that has dignity and greatopportunity.

Lure of the law still strongDuncan Hamilton MSP tells Roger Mackenzie

why the call of the law was too strong to resist

JournalInterview


“Back in 1999 when I was electedas the Parliament’s youngestmember it was impossible to saywhen the time would be right topursue a legal career. My decision atthis stage is as much to do withelection cycles as anything else. At29, I will still be at a reasonable ageto pursue a career in law, whereasat the next election it would beslightly less appealing.

“I have gone through a great deal ofsoul searching. I know people wouldimagine politicians don’t have souls,but I’ve discovered one and havingsearched it I realised that theParliament is through the dangerousfirst period and is reasonablyentrenched in public life.”

Yet it still doesn’t say much for aninstitution that has hardly covereditself in glory. Losing its youngestmember is hardly auspicious for animproved second term.

“The Parliament’s a great dealbigger than me. Hopefully by 2003 Iwill have played my part inestablishing it and I will always bevery proud of being the youngestmember of the first Parliament.Given that there is a massivesection of the population under theage of 30 it was right that there wassome representation from peoplelike me who were in their mid tolate 20s. That has been a verypositive thing.

“There are plenty more people ofmy age and indeed younger whowill want to come into Parliament.The minute an MSP star ts tobelieve they are that important inthe grand scheme of things, that’sthe time to go.”

How have colleagues reacted to hisdecision?

“Without any exception at all, therehas been a universal understandingthat this is the right move for me.People are aware that I have had along-standing ambition and desireto become a lawyer and it’s fair tosay that across the parties there is adegree of jealousy from some that I

am still young enough to go andstart a new career. People in their40s or with children probably can’tafford to take the sort of drop inincome that I’m now facing.

“I’ve been very impressed with thelevel of understanding and I canhonestly say I’ve had nothing butsupport.”

At the risk of offering a situationswanted advertisement gratis, whatcan he bring to the profession fromhis time as an MSP?

“I recognise that my politicalbackground will have pros and consfo r po ten t i a l emp loye r s , bu thopefully a few firms will find myapplication attractive. One of thethings about being in parliament isthat you’re not allowed to have anego, and I will expect to do my fairshare of photocopying as a trainee.

“There are more similaritiesbetween politics and the law thanyou would first imagine. Beyond theobvious points of legislating andpresenting arguments, there’s mye x p e r i e n c e o f c o n s t i t u e n c ysurgeries, dealing with people on aone to one basis to try and taketheir problem and solve it withinthe legal framework.

“Without doubt I am betterequipped now to be a lawyer thanif I had gone straight from university,though I imagine in may ways it willbe a painful process to go back andbe a student again and thenbecome a trainee.”

In fact, discounting his time as anMSP, his career path marks areversion to the tradition of doinglaw as a second degree.

“Most senior lawyers I talk to whohave come to law later tell me theyh ave t h e unde r s t a nd i n g a ndmaturity to deal with individuals anda real thirst for the law.”

For Hamilton, Parliament’s lowestmoment came with the fox huntingBill. Contrary to the SNP partyl i n e , h e v o t e d a g a i n s t t h e legislation.

“It’s the worst piece of legislationI’ve ever seen. That was generallyreckoned to be a very black dayfor Parliament and showed it up tobe an immature institution thatdidn’t properly understand thel e g i s l a t i v e p r o c e s s a n d t h eimplications of what it was doing.T h a t w a s a d a m a g i n g a n ddepressing day for Parliament andone which made the case for arevising chamber.”

He suggests it was symptomatic ofthe deficit of understanding hisfellow parliamentarians have of thelegislative process.

“Most MSPs don’t have a sufficientgrasp of the law. Outside of theJustice Committees, there’s a lack ofappreciation of how courts willinterpret legislation that is passedand, perhaps more worryingly, Idon’t detect any great thirst on thepart of my colleagues to learn moreabout the legal profession.”

Cynics might view his change ofcareer path as testimony tot hwa r t ed amb i t i o n , t h e he i rapparent to Alex Salmond beingm a r g i n a l i s e d b y t h e n e wleadership regime. Not so, insistsHamilton.

“I’m extremely close to JohnSwinney, we work closely togetheron First Minister’s questions. Thisdecision is nothing to do with anyindividual other than DuncanHamilton. It’s an entirely personaland positive decision.”

For now at least, he’s definitely still apolitician.

I don’t detect any

great thirst on the

part of my colleagues

to learn more about

the legal profession

[email protected]:

JournalNew Rules


More preparation forpractitioners and sheriffs

Third party procedureUnder the new rules a form of thirdp a r t y p r o c e d u r e i s m a d e competent in summary causes. Therules governing this are modelledon those in the Ordinary CauseRules. However, an application forservice of a third party noticenormally requires to be made at thetime when the defender lodges aform of response. It can be madelater only with leave of the sheriffon cause shown.This is understoodto be with a view to focusing all ofthe issues in the case at the initialhearing.

Decree by defaultMuch frustration has been causedby the provision of the present rule28 which requires the fixing of aperemptory diet if a party is indefault. The new rules are morerobust. The sheriff may now grantdecree by default if a party fails toappear at a hearing (other than thehearing of an incidental application)where required to do so. He is notobliged to grant decree but has adiscretion in the matter. In the caseof a failure to implement an orderof the court after a proof has beenfixed, the sheriff has again adiscretion whether or not to grantdecree by default, but in this case hemust give the offending party anopportunity to be heard.

ProofThe provisions in the new rules forproof are relatively little changedfrom those in the present rules.Perhaps the most significant

innovation is that the sheriff is givenpower, either of his own accord oron the motion of a party, to orderthat proof on liability or some otherspecified issue should be heardseparately from proof on any otherissue.This is likely to be of particularimportance in actions of damagesfor personal injury.

The new rules also containprovisions for an exchange of lists ofwitnesses similar to those in theOrdinary Cause Rules.

Regarding productions there is anew rule providing that a party

lodging productions must send a listthereof to every other party andmust also send a copy of eachproduction to every other partyunless it is not practicable to do so.It is understood that thesedisclosure provisions are intendedt o e n c o u r a g e a n d f a c i l i t a t esettlement. A further new provisionis that a copy of each productionfor the use of the sheriff must belodged with the sheriff clerk notlater than 48 hours before the dietof proof.

Actions with special rulesIt is not intended to go into anydetail about actions with specialrules other than actions of damages

for personal injury which are dealtwith below.

Multiplepoindings and actions ofcount reckoning and payment oftenappear to cause dread in the heartof the practitioner (and of somesheriffs too), but the summarycause rules governing them areclearly expressed and, if followedaccurately, should cause no difficulty.

The rules for actions for recovery ofpossession of heritable propertyare little changed. It may be of someimportance to note that therequirement for a written defencein the form of response applies tosuch actions as well as any other.Those advising defenders shouldbear in mind that a defence statedas “unreasonable to grant decree ofe j e c t i o n ” w i t h o u t f u r t h e rspecification is unlikely to meet witha sympathetic reception by thesheriff.

Actions of damages forpersonal injuryIn the case of an action of damagesfor personal injury (or in respect ofthe death of a person frompersonal injury) the actual form ofthe statement of claim is specified. Itis set out in very much the samew a y a s w o u l d b e t h econdescendence in a standardreparation ordinary cause. It isspecifically provided that thestatement of claim must contain aconcise statement of the grounds ofaction and the facts relied upon toestablish the claim. The pursuer’sdate of birth and, where applicable,his National Insurance number, must

Concluding his guide to the news summary cause rules, Sheriff Alastair Stewart

looks at actions of damages for personal injury and small claims

Party lodging

productions must

send a list thereof to

every other party

JournalNew Rules


be stated. In the paragraph of the statement of claimdealing with any treatment received by the pursuer (orthe deceased in the case of a death claim) the name ofevery medical practitioner by whom and every hospitalor other institution in which such treatment was givenmust be stated.

With the summons must be lodged a statement ofvaluation of claim. The form for this provides fordifferent heads of damages being stated together withdetails of what interest is being claimed.The statementmust also include a list of supporting documents, andthere must be lodged along with the summons allmedical reports available to the pursuer on which hemay rely. If no medical report is lodged the pursuer mustspecifically state that there is no such report.

The summons may include a specification of documentsfor which a form is provided in the rules. This formincludes the standard documents called for in areparation action.

The copy summons served on the defender must beaccompanied by a copy of the statement of valuation ofclaim. The copy summons contains a different form ofresponse from that in other actions for payment. Thisform of response gives the defender the opportunity toanswer the pursuer’s claim in detail, including the facts ofthe case and the heads of damage.

If the defender lodges a form of response the actioncontinues as described above for other summarycauses. If the summons contains a specification ofdocuments, the sheriff clerk makes an order grantingcommission and diligence when the form of response islodged. If the defender objects to the specification hemust lodge an incidental application to that effect beforethe return day. This will then be determined on thecalling date.

Other rules applying to actions of damages for personalinjuries (e.g. provisional damages and intimation toconnected persons) are similar to those for ordinarycauses.

SMALL CLAIMSThe new Small Claim Rules provide for less of adeparture from the present procedures than is the casewith summary causes. The most notable difference isthat there is only one body of rules for all small claimsand not, as under the present provisions, separate rulesfor actions for payment of money only and for otheractions. It is also implicit in the new rules that a caseshould be disposed of at the first hearing if at allpossible.

As at present a party may be represented by anauthorised lay representative throughout the wholeproceedings. It is clearly envisaged in the rules that inmany, if not most, small claims, parties will not berepresented by any legally trained person.

Summons, copy summons, claim, statement of claim andform of response

The new small claim provisions for the summons, claimand statement of claim are broadly similar to those forsummary causes and call for no comment.

There are two forms of copy summons which may beserved on a defender: one for actions for payment ofmoney in which the defender may apply for a time topay direction or time order; and one for all other actions.

As in the case of a summary cause, the copy summonscontains a form of response. However, the form ofresponse does not provide that a defender must statehis defence in writing. Instead, it provides that he shouldstate an intention to defend the action, in which case hemust return the form of response to the sheriff clerk bythe return day and must then attend court on thecalling date.

The new small claim rules provide that a defender maystate a counterclaim, and this is of course a significantchange from the existing procedure. A defender whowishes to state a counterclaim may do so either inwriting in the form of response or orally at the hearingof the case on the calling date.

Undefended actionThe small claim provisions for undefended actions arebroadly similar to those for summary causes.

Recall of decreeAgain the small claim provisions are essentially the sameas those for summary causes.

The HearingIf a defender lodges a form of response the case mustcall 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 sheriffconsiders to be fair, best suited to clarification anddetermination of the issues before him, and which giveseach party a sufficient opportunity to present his case.This is in conformity with the policy of making smallclaim procedures as accessible and user-friendly aspossible to those who are not legally qualified.

As in the case of a summary cause, the sheriff isrequired first to ascertain the factual and legal basis ofthe claim and any defence and to seek to negotiate a

JournalNew Rules


settlement between the parties. If that attemptfails he must identify and note on the summonsthe disputed issues of fact and law and any factswhich are agreed. He should then, if possible atthat stage, reach a decision on the basis of theinformation before him. This procedure willalmost certainly have implications for the amountof time which will require to be provided in thecourt programme for the initial hearing in adisputed small claim.

If the dispute cannot be resolved without theleading of evidence the sheriff must fix a furtherhearing which is somewhat confusingly referredto in the rules as a “hearing on evidence” ratherthan a proof. In that event, the sheriff may indicatewhat matters require to be proved and giveguidance to the parties on the nature of theevidence to be led.

Third party procedureThere is no provision in the Small Claim Rules forthird party procedure.

Decree by defaultThe small claim provisions for decree by defaultare similar to those in summary causes.

Hearing on evidence (proof)Before he begins to hear evidence the sheriffmust explain to the parties the form ofprocedure which he intends to adopt, bearing in

mind the circumstances of each party andwhether (and to what extent) a party isrepresented. He must, if he considers it necessaryfor the fair conduct of the proceedings, explainany legal terms or expressions which are used.

Evidence will normally be given on oath oraffirmation, but the sheriff may dispense with thatrequirement if “it appears reasonable to do so”.The rules give no guidance as to thecircumstances in which such a dispensation mightbe granted.

The rules specifically provide that, in order toassist resolution of the disputed issues of fact, asheriff may himself put questions to parties andwitnesses.This is simply giving formal recognitionto a practice which many sheriffs have adoptedsince the introduction of small claims.

The Small Claim Rules, unlike the SummaryCause Rules, make no specific provision for thesheriff to hear submissions from parties at theconclusion of the evidence. In practice, if partiesare legally represented it is probable thatsubmissions will be allowed – indeed encouraged.In the absence of legal representation, a differentview may be taken.

CONCLUSIONAs has, I hope, been demonstrated, the new rules,especially those for summary causes, containmany innovations, most of them improvements

on the existing provisions. What is reasonablyclear is that the new rules will require a greateramount o f advanced prepar a t ion by thepractitioner than under the present rules,especially in the case of summary cause actions ofdamages for personal injury.

The new rules also envisage the sheriff having todo more preparation before a summary causecourt. It is probable that a good deal more timewill have to be spent with each defended actionon the calling date than is the case at present.Theimplications for court programming, at least in thebusier courts, may be quite significant.

The Judicial Studies Committee is taking steps toensure that sheriffs will receive training in theoperation of the new rules. It is to be hoped thatthe Law Society and local faculties will take similarsteps for solicitors. I have no doubt thatorganisations such as the Citizens Advice Bureauxwill have training sessions for their volunteerswho a r e l i k e l y t o a c t a s a u t ho r i s e d l a yrepresentatives. Unfor tunately, similar stepscannot be taken for party litigants, and they, withthe new procedures as with the present, will haveto continue to undergo in-service training fromthe sheriff as the case proceeds! However,updated versions of the information leaflets forusers of both procedures are to be published,which will no doubt be of considerable assistance.

JournalPresident


To understand the understated approach and dry wit ofnew President David Preston, it’s probably sufficient toreveal the philosophy which he hopes will see himthrough his presidential year.

“I don’t want to achieve immortality through work, Iwould rather achieve it by not dying”.

He attributes the quote to Woody Allen, but turning 50soon and with a hazardous road from Oban toEdinburgh to drive on a frequent basis, there may, as inmuch he says, be a hint of seriousness beneath themirth.

It’s no surprise then that he won’t commence with agrand plan. “It’s very easy for someone coming into thisjob to be deluded into thinking they are going to be ableto change the world.You have to try and identify somepriorities and then narrow them down to try and getsome sort of message over, both in relation to the

relevance of the Society to the profession in a narrowersense and its wider relevance to the general public.”

For the incoming President, one of his main prioritieswill be to revisit what it actually means to be a solicitor.

“There are many different providers in the marketplaceof the sort of services that solicitors provide and we’vegot to focus on comparing what a solicitor can provideon the high street with mortgage brokers, estate agentsand claims companies. I firmly believe there is an addedvalue that the badge of solicitor can deliver to the public.

“There are the more obvious benefits – such as publicprotection from the indemnity policy and GuaranteeFund – but the added value has to be the way solicitorsperceive people’s problems and needs and how they goabout resolving and fulfilling them.

“That solicitors are different from other professions wasunderlined and underscored by the decision in the

ThePrestonfrontRoger Mackenzie finds that a light-hearted approach

masks the serious agenda of new Society President David Preston.

Portrait by Austin Lafferty

Nova case, which showed that incomparison to accountants thereare different values and principlesthat lawyers must adhere to, notleast of which is the independenceof advice and avoiding conflict ofinterest situations.

“Competition in some quarters isregarded as the master over all andNova has shown that what may onthe face of it appear to be anticompetitive can be in fact in thepublic interest. It re-emphasises thatwe must always look at what we dofrom the public interest as well asthe interests of the profession.”

N e v e r t h e l e s s t h e S o c i e t y ’ sprincipled stand against MDPs maybe undermined if their counterpartsin England go down that route. AsAlan Paterson suggested in lastmonth’s Journal, the potential forproblems is obvious if Englandembraces MDPs and they are thenlinked to Scottish firms throughmulti national partnerships.

Could the Law Society of Scotlandresist the tide in thosecircumstances?

“If England went down the MDPsroute, we would continue to resistbased on the principled argumentwe have set out.We apply the sameargument to the so-called TescoLaw. My personal view is that thereare too many threats to theindependence of the profession.Independence exists without theneed for regulation. Therefore tohave to introduce regulation tomaintain that independence wouldbe daft.”

A t i t s m o s t e x t r e m e , t h eimportance of independence isclearly illustrated by recent eventsin Zimbabwe, said Preston.

“I met the President of theZimbabwe Law Society and wasimpressed by the resolve of hismembers to stand up for theirclients against what they perceivedas oppression, despite personalthreats to them and their families. Itmade me realise how comparativelycomfortable we are here and thateven in the 21st century we mustguard our core values.”

His laid-back approach makes itseem unlikely he is the kind ofPresident that would torturehimself with soul searching aboutwhere he and the Society fit intothe modern profession – but hisrelaxed persona may be misleading.

“ T h e S o c i e t y h a s i m p o r t a n tfunctions to play in maintaining thevalues of solicitors, and in regulatingthe profession, but it is also there toprovide support to practitioners,offering help, guidance and servicesto the profession whilst alwaysretaining the competitive nature ofthe individual firms and practiceswhich make up the profession.”

Coming from a three partner firmcan he relate to the challengesfaced by the large city firms?

“In the 21st century, the Society hasto be relevant to all of its membersand I intend to focus on that. Someof the larger corporate firms haverepresentation on Council and Iwould like to see their numberincrease.”

Are the firms interested and canthey afford to lose top fee-earnersfor long periods? It does seemsomething of a paradox that firmswith apparently the greatestresources can least afford to letpartners devote time to Societybusiness.

“I just want to make sure that thereis balanced representation onCouncil. If there are any issues toaddress with the larger firms andtheir representation on Councilthen I will be happy to do so. Iwould have thought that large firmswould find it comparatively easierto cover for the time commitmentsof a Council Member but that maynot be so with pressures oni n d i v i d u a l d e p a r t m e n t s o rchargeable hours targets.”

It might be expected that hispartners at Hosack & Sutherlandwould resent carrying the practicein his absence. Not so, says Preston.

“My partners are very supportive.It’s an accolade for my firm and thetown of Oban. It helps demonstrate

that the profession is very active inthe town and Argyll generally.”

Still, the travelling schedule fromOban must be exhausting. “I thinkthis is the most distant place aPresident has come from, but I havebeen travelling down for ten yearsand have built up a system throughthe support I have in the office, andwith e-mail and mobile phones I cankeep in regular contact both withthe office and with clients.”

Martin McAllister’s Presidency wasdominated by the Justice 1Committee’s inquiry into theregulation of the legal profession.That seems set to loom large in theearly months of David Preston’stenure also.

“Justice 1 is going to report this yearand one of the things coming out ofit that we are going to have toaddress is that perceptions canform opinions. If the perception andreality of the profession are too farapart, people can form opinionsthat are way off beam. Our job is tomake sure perception and realityare as close as they can be.

“Part of that will be to focus onwhat the profession has incommon. It’s not just solicitors butthe profession as a whole thatcomes in for criticism. If we examinewhat the different branches of theprofession have in common ratherthan the differences then progresscan be achieved. Everybody wantsto make progress, it’s change theydon’t like.”

How would he encapsulate theDavid Preston approach?

“I tend to approach things from aninclusive point of view and preferstructures that are built from thebottom up rather than the top down.I would hope therefore to bring agentle hand to the tiller and try tosee things from the lighter side.”

That light-hearted approach whichcan belie his drive and commitmentis evidenced by a bet with hispredecessor. If he puts on weightover the year under the deluge ofdinners he will attend, he has to pay£300 to an organisation – whichshall remain nameless – that itwould pain him to assist. He’ll beworking hard to ensure the scalesdon’t betray him next May. “I hopeto achieve the balance of takingserious issues seriously but keepinga healthy dose of perspective andhumour to hand.”

JournalPresident


Everybody wants

to make progress,

it’s change they

don’t like

[email protected]:

JournalWebsites

Advocate Derek O’Carroll picks out a likely candidate for your home page if you undertake a lot of legal research online

www.lawreports.co.ukthis is another of the plain vanillahigh-content sites that should findtheir way to the top 10 basic sitesof any lawyer interested in what’smoving in the courts. This is thewebsite of the IncorporatedCouncil of Law Reporting which isresponsible for publishing WLR, theLaw Reports and ICR. The missionof the ICLR is to report those casesthat “really matter”. Much of thewebsite is devoted, as one would

expect, to the promotion of itswares. But there is more. Usefully,the site lists all the cases reported inthe current and previous issue ofWLR together with a briefs u m m a r y o f t h e c o n t e n t .Unfortunately, although the mostrecent cases reported in ICR andthe Law Reports are also listed, theycontain neither a summary nor alink to the rubric and headnote. Pity.It can’t be that difficult especiallysince the Law Reports contain a

selection of WLR cases.The best bitI save till last: hope you are still here.The Daily Law Notes are a “preciseand accurate summary” of thosecases which will eventually end up inWLR. Speed is the thing, with thecases finding their way onto thewebsite within 24 hours or so ofthe judgments being handed down.The index is a little primitive in webterms.You can search by court (withthe cases broken down by subjectarea), or by date. There is a useful

summary of all cases in the currentand last week. If you only know thename of the case, the index will nothelp 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 ◆◆◆◆◆

site of the month:

Speed ◆◆◆◆

Usefulness to practitioners ◆◆◆◆◆

Usefulness to non-practitioners ◆◆◆

Site design ◆◆◆◆

Ease of use ◆◆◆◆◆

Updating frequency ◆◆◆◆

www.scottishlaw.org.ukThe predecessor of this site, Scotslawonline, wasfirst reviewed in these pages nearly two years ago.There is little left of that site now, not even thename. However, the identity of the indefatigableauthor remains, Kevin Crombie, an independentpioneer in Scottish legal websites. So it’s worthhaving another look to see whether the aim of thesite, which is to be “the very first place thatanyone with an interest in Scots Law would visit…on the internet” has been realised. To a largeextent it has. Its home page would be a goodcandidate for the default home page of yourbrowser if you use the web a lot for legal stuff.Thankfully, the site has now eschewed the use offiddly graphics and most other irritating gimickystuff (except for pop-up banners: I suppose thesite has to be paid for somehow). Theuncomplicated, simply-designed home page is

easy to navigate with the principal sections of thesite accessible from columns on both sides of thepage and a straightforward introduction to thesite down the middle.The author has packed thesite with all sorts of resources.The basic nuts andbolts stuff (caselaw, legislation, government sites,other legal links) are found in the first twosections. The A to Z of law is particularly usefulwith annotated links to websites listed undercategories (e.g.A is for Animals, F is for Family andZ is for Bored.com ). Although billed as the A toZ of Scots law, that is a little misleading as the sitescover law from many jurisdictions. Unfortunately,there are not enough Scots law sites to fill an A toZ.The site works hard at interactivity so there areloads of bulletin boards. Most, unfortunately, arenot well used by the public and lawyers which is agreat pity since such features are potentially veryproductive.The site also works hard at appealingto other interests such as law students and

trainees with news, journal and discussion sites inthese areas.There are fun things to do too: try thexxx..archive in the Shockwave files section and seeif your mental age is old enough tocontinue…(The things a reviewer has to do).Thenew Intranet for lawyers is a smaller version ofthe main site focusing on practical resources forlawyers including ancillary tools (such as currencyconverters, timetables, on-line forms etc.).Although the site no longer advises when it waslast updated (a response to the previous review!)the news section is updated daily and the restpretty frequently.The author of this site has put anenormous amount of work into this ambitioussite.The more it is used, the better it’ll be, whichmust 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)

[email protected]:


Derek O’Carroll welcomes comments on the reviews and suggestions for sites to review

JournalIT


Finding,

Keeping,

Sending

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 nowavailable on the Internet. TheS c o t t i s h C o u r t s w e b s i t e a twww.scotcourts.gov.uk is oneexample. Practically all SupremeCourt decisions and some SheriffCourt decisions are published on it,usually within a day or two, andcertainly sooner than printed casereports. Being able to see decisionsas soon as they are issued is onething, but to get value out of it, youneed to know how to manipulatethe information. There is a slightproblem with the structure of thescotcourts site, stemming from itsuse of HTML frames to organisethe layout of the site. This makessome processes less intuitive thanwith other sites.There are, however,some simple work-arounds, andthese may be worth learning asthey can be used to resolve theframes problem which occurs inseveral “official” sites.

Here’s how to:

■ Set the “Supreme Courtstructured search” page as a“favorite”.

■ Save particular cases to yourmachine.

■ Attach the case to an e-mail.

Setting “favorites”You’ll be familiar with the structureof a typical website address, in thisexample, www.scotcourts.gov.uk.This address is associated with aparticular piece of space on aserver, a server being a computerwhich is programmed to “serve” uppages when requested by someonelike you through an Internetbrowser, such as Internet Explorer.The space contains a series ofpages, usually organised within a setof directories. Later on, I’ll belooking at an address within thes c o t c o u r t s s i t e c a l l e dwww. s co t cou r t s . g ov. u k / c g i -b i n / S u p r e m e . p l , w h e r escotcourts.gov.uk is the space onthe server, cgi-bin is a directorywithin that space and Supreme.pl isa file within that directory. If thisseems abstract, think filing cabinet /folder / letter.

It’s easy to set a particular site as a“favorite” by clicking Favorites | Addto Favorites… from the menu barat the top of the browser screen.This pops up a dialog box, whichallows you to add that particularpage to your list of Favorites, andyou can then return to that page inthe future by clicking the favoritesicon in the browser to show yourlist and then clicking the site title inthe list, saving you from having toremember the address.

JournalIT


However, it’salso possiblet o s e tp a r t i c u l a rpages withinthe site asf a v o r i t e s ,which allows

you to “deep-link” directly to the page, and savesyou having to start at the front page and clickyour way through the navigational elements ofthe site. In this particular case, setting up a deep-link directly to the Supreme Court structuredsearch page allows you to go directly to that pageand saves you having to trawl through fourintermediate pages. This is where the framesproblem arises. You need to know the pageaddress to set it as a favorite. The addresswww.scotcourts.gov.uk is not actually a page, it’sjust a space which contains pages. By default,when you type that address in, it loads a pagecalled index1.htm. Normally, as you click througha site, you’ll see that the page address changes inthe address bar, and, if it does, you can save anyparticular page as a favorite without any difficulty.This doesn’t happen with scotcourts. You’ll seet h a t i t i n i t i a l l y l o a d s a p a g e c a l l e dwww.scotcourts.gov.uk/index1.htm. Click throughthe site to other pages, and you’ll see that theaddress is always index1.htm. Accordingly, if youtry to set any page as a favorite, you will alwaysarrive at the opening page instead of a directdeep link to the page you are interested in.This isbecause the frames structure always initially loadsindex1.htm which itself contains no substantivecontents, just instructions to split the screen intoa left hand frame containing a navigation menu,and a right hand frame containing the substantivecontents.

To get round this, from the opening page ofscotcourts, find your way to the Supreme Courtssearch page. As per figure one, the green bit onthe left is one page consisting of navigationoptions and the right hand bit is the substantivecontent. Both these pages are loaded into thetwo separate frames set up by index1.htm. Youare always looking at index1.htm, even though itscontents may periodically change depending onthe navigation choices you make. Now, however,instead of using the left mouse button to click onthe words “Structured Search”, click the rightmouse button. From the menu which appears,click “Open in New Window”.This opens a newinstance of your browser, and, this time, instead ofloading index1.htm all over again, it loads just theSupreme Courts structured search page, andy o u ’ l l s e e t h a t t h e a d d r e s s i s n o w

www.scotcourts.gov.uk/cgi-bin/Supreme.pl.This isa particular page address which you normallycan’t see within a frames structure.You can nowadd this page to favorites as described above.

Now, this may seem a little pointless, but it doesn’tjust save you having to click through from theopening page each time you want to do aSupreme Courts structured search. If you find acase while still within the frames structure, andwant to save it to your machine, remember thatyou are looking at index1.htm which just happensto be showing that case at the time, and also thegreen navigation menu on the left hand side. If youtry to save this case, you will just save index1.htm,not the contents: basically, when you open up thesaved file, you will see nothing. However, if youfollow the procedures described, to allow you toopen the search page directly, any cases found willbe loaded directly, not within index1.htm, and youcan then save them directly. Despite the problemswith navigation, saving, bookmarking and printing,which framesets give rise to, a surprising numberof sites insist on using them. Knowing that you canright-click and open the destination in a newwindow is a good work-around. Opening a targetin a new window is also useful when, say, you finda list of resources on a page, such as the search-results within scotcourts, and want to work yourway through them without having to jumpbackwards and forwards between the search-results and each case.You can right-click on eachcase and open it in its own window.

If you take an interest in the development of yourown website, this line of source-code will placethese words “Add this page to Favorites” on yourpage, and will call the Favorites dialog box whenclicked.

<ahref=”javascript:window.external.AddFavorite(‘http://www.wherever.com/index.html’,’Yourdescription’)>Add this page to Favorites</a>

The thinking behind this is that there’s a school ofthought which says that if a user option is mademore explicit, users will be more likely to take it.You might want to include this line on a pagewhich carries an article about an area of lawwhich is under review, with say, a by-line saying,

“The Scottish Executive has issued a consultationpaper on possible reforms in this area. Bookmarkthis page here as we’ll be updating this page asmatters develop.” People may be more inclined tocome back and then instruct you, or they may not.

Saving cases to your machineWell, let’s be frank about this: unless you’ve beenbrave enough to ask your secretary what thedifference between “save” and “save as…” is,you’re probably still printing cases out and thendealing with them as you would any other formof printed media. Here’s how to store them onyour machine, so that you can do whatever youlike with them later on.

Minimise other programs so that you have a clearview of the computer’s “desktop”. Click the rightmouse button. From the menu which appears,put the mouse over “New “, then from the sub-menu, click “Folder”.A new folder appears on thedesktop. Give it an appropriate name, such as“Cases” by right-clicking on it, and selecting“Rename” from the menu which appears. Thissets up a folder for future use.

When you find a case you’re interested in youcan save it here. Say you’re in the SupremeCourts search page, you’ve found a case andneed to save it. From the menu bar at the top ofthe page, click “file | save as”.This opens a dialogbox. At the “Save in..” select menu at the top ofthe box, find and click the “Cases” folder.The text-area should fill up to show other files already inthat folder. At the “File Name” box, you can re-name the file to whatever you think appropriate.At the “Save as Type” select menu, you can leavethe type as “Web page, complete”, but if the pagehas lots of unnecessary pictures which you’re notinterested in, you can change the type to “Webpage, HTML only” to save just the words. Thenclick “Save”.The file will now be in the folder.

To view it later, click or double-click it, dependingon the set-up of your machine. It should open inInternet Explorer. You may wish to take a quoteout of the decision to put into a letter : put thecursor at the star t of the section you’reinterested in then press the left mouse buttondown. Keeping it down, drag the cursor to theend of the section, then release the button. Thesection should now be highlighted blue. Put thecursor over the blue section and right-click. Fromthe menu which appears, click “copy”. This putsthe section into a temporary storage area calledthe “clipboard”. Go to the letter, or e-mail orwhatever, place the cursor at the appropriatepoint, then right-click, and from the menu whichappears, click “paste”. The section should beplaced into the letter. (Incidentally, “Save” is used

Opening a

target in a new

window is

also useful

Figure 1

JournalIT


to save changes to a previously saved item,whereas “Save as…” is used to save for the firsttime a new unsaved item, or, alternatively, save anew instance of a previously saved item, that is, itmakes another copy of it.).

Attaching the case to an e-mailNow you’ve got some cases saved, you may wantto send copies to the rest of your firm, so thateveryone is up to date and the firm doesn’t getsued, or send them to the other side or to clients.If you can do this by e-mail it saves you thebother of printing out multiple copies.

It’s possible to attach the entire file, or indeed anyfile on your machine, to an e-mail. The screen-shot at figure two used Outlook Express as themail client, but the same rules apply for mostclients. Start the e-mail in the usual way byclicking “new mail”, then fill in the “mail to”,“subject” and “body” fields as appropriate.

Then, click “Insert” from the menu bar at the topof the mail-message. From the menu whichappears, click “File Attachment”. From the dialogbox 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 itsname appears in the “File name” box, then clickthe “Attach” button. In Outlook Express, anotherfield opens up beneath the “subject” field to showthat the file has been attached, but other clientsmay show an icon in the body of the message toshow that the file has been attached. Clicking onthe icon will open the file. You can repeat thisprocess if you have more than one file to go.There are other ways of attaching files. If you havethe Cases folder open, you can put the cursorover the file, depress the left mouse button andthen physically drag the file over into the body ofthe message.

Occasionally, you may want to send an entirefolder which contains several files. You can’tdirectly attach a folder. In these circumstances,

you have two options. You can attach each filefrom within the folder separately. Alternatively,you can run the folder through a program calledWinZip which will recreate it as a new objectcalled a .zip file, which can be attached as a singleitem. How to use WinZip is beyond the scope ofthis article. If you don’t already have a copy of it,go bother your IT department, as you willinevitably receive a .zip file from someone if youare now using e-mail, and will not be able to openthe file without it. If you start sending .zip files out,you should note that your recipient may not havea copy of WinZip with which to open the .zip file,in which case they’ll probably phone you up andtell you “that thing you sent me, there’s somethingwrong with it”. If you pay for a registered versionof WinZip, it allows you to create a self-extractingzip file which can be opened without a copy ofWinZip. However, it does this by packaging thefile as an executable, which means it is a self-contained program which can run without relyingon outside assistance. Your IT department willrightly tell you that you should be very cautiouswhen you receive any executable attachments, asexecutables can be computer viruses (it is anexecutable if it has the file extension .exe). Yourclients may be reluctant to accept WinZipexecutables.

When attaching a file, you should alwaysremember that different types of files areassociated with different programs, for example,the cases I’ve mentioned in this article are writtenin HTML, have a .htm extension and areassociated with Internet Explorer. If you send afile which depends on a particular program, youneed to remember that the recipient may nothave that program and may be unable to read it.To minimise the risk of this happening, you canoften simply copy’n’paste the text of the file intothe mail-message itself. It will lose it’s formattingand some other characteristics but this issometimes the only option.

SummaryThese details may seem over-technical, but in therecent past I have had several clients mailing me.zip files, and writs scanned in as Jpegs. This willbecome more common, and it will happen toyou, and your client will expect you to deal withit as a matter of course. I appreciate that many ofyou will regard much of this as “secretary stuff ”. Ifyour firm has gone to the bother of getting yourdesk online, you should explore the many wayswhich you now have of getting information andpassing it around very quickly, without havingwork sitting in a typing queue for three days.Other possibilities start to present themselves,once you realise that you can transfer any type ofmedium by attaching it to an e-mail. If you have amicrophone and speakers on your machine, tryopening the Sound Recorder (the path is Start |Programs | Accessories | Entertainment | SoundRecorder). Record a bit of dictation and save theresulting .wav file, then e-mail it to yourself. Youhave e-mailed dictation, and, if you felt so inclined,you could use a more elaborate program thanSound Recorder to dictate anywhere and e-mailit anywhere, say, to a branch which has excesstyping capacity at that point in time, or to anoutside transcription agency, all without anytransfer of physical objects.

[email protected]:

Figure 2

JournalRisk Management


Omissions causemost 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.

No right of accessJ was the proud owner of a classic Triumph TR4.The carwas his pride and joy and it was only ever taken out ofthe garage in perfect weather conditions.

As a result, when J purchased a flat in a recentlyconverted house, it was the substantial garage at therear of the house that had been the deciding factor. Itwas therefore a major problem when J received a sternletter pointing out that J had no right to drive along thetrack down the side of the house leading to the garageat the rear of the building.

The owner of the track is offering J the opportunity toacquire it at a price of £10,000. J is particularly aggrievedabout the whole situation in view of the fact that thegarage was the main reason for buying the flat.

How is this situation likely to have arisen? How couldthe situation have been avoided?

Most claims arise as a result of omissions. In this case,there may have been an omission to examine the titleproperly or an omission to provide for an express rightof vehicular access to the garage or an omission toestablish that an express right of access was required. Achecklist approach might assist to prompt considerationof all the relevant issues in taking instructions from theclient, in examining title and in drafting documentation.

Retention of clients’ documentsF & Co received a letter from a client P with whomthere had been no contact for several years. P wasasking for papers which he said F & Co had beenholding for him in safekeeping.

One of the partners in F & Co was fairly sure thepapers had been forwarded to P a long time ago. Hewas pretty sure about this because he rememberedhanding over the documents personally when P calledat F & Co’s offices.

The file was retrieved from archival storage but itrevealed no record of the meeting with P or the factthat the documents had been handed over.Nevertheless, the solicitor was sufficiently confident ofhis recollection that he wrote to P and said that thedocuments were already in P’s possession.

That prompted a threatening letter from P accusing F &Co of having lost the documents and intimating a claimfor 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 inF & Co’s possession; there was nothing to verify that thedocumentation had been returned; there was certainlyno receipt from the client confirming that he hadreceived 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, perhapsalso in a central register. While files may be destroyedafter a retention period, if a central register ismaintained longer term, that will provide a record ofdocuments received and returned/delivered/destroyed.Best of all, get signed acknowledgments from clients.

Terms of engagement/Non-engagementFirm X acted for A in a successful medical negligenceclaim. Some months after settlement of that matter, FirmX received a letter from another firm of solicitorsalleging that Firm X had allowed a claim fordiscrimination to become time barred. On checking theirfile, Mr X of Firm X was reminded that the issue of apossible discrimination claim had arisen incidentallyduring the course of a discussion concerning the medicalnegligence claim. Mr X was quite clear that he had neverundertaken to act for A in the discrimination matter.

How would you have avoided finding yourself in thissituation? If Mr X was so clear in his own mind that hewas 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 Xmight have issued a non-engagement letter in relation tothe discrimination matter.

Partnership liabilitiesFirm Z acted for C in connection with his departurefrom the partnership of ABC & Co. This was anextremely acrimonious bust up and there were

JournalRisk Management


protracted negotiations over everyaspect of C’s disengagement fromthe business.

Eventually, a Minute of Dissolutionwas concluded and signed and Crequired to make a modestpayment to his former partners inrespect of his agreed balancereflecting the level of businessborrowings at the date of C’sdeparture.

Some time later, the business failedand the bank called up securitiesand guarantees for the businessborrowings. Because there was ashortfall, the bank looked to C interms of a Personal Bond which hehad signed and from which he hadnever been released.

How would you ensure that noclient of yours found himself in thisposition? Firm Z might have drawnup a list of action points to beattended to in order to achieve C’sobjective and these could havebeen diarised and copied to theclient. All of this would have helpedto minimise the risk of critical issuesbeing overlooked and to avoid anymisunderstanding between solicitorand client.

Lenders’ general instructionsF i r m Y a c t e d o n b e h a l f o f purchasers of a house and for theirl e n d e r s i n t h e p r e p a r a t i o n ,execution and recording of aStandard Security. On the face of itthe purchase and loan transactionsproceeded normally.

T h e p u r c h a s e r s / b o r r o w e r sdefaulted and the property wasrepossessed by the lenders whoi n cu r r ed a l o s s . The l ende r srequested Firm Y’s file and intimateda claim on the basis that, inter alia,Firm Y had failed to comply withcertain terms of the lenders’General Instructions to Solicitors.

The letter received from thesolicitors acting for the lendersalleged inter alia that, contrary toexpress terms of the GeneralInstructions to Solicitors, Firm Y hadfailed to report to the lenders:

■ that the whole purchase price wasnot passing through the hands ofFirm Y as part of the price wasapparently paid by the borrowersdirect to the seller; and

■ that the party from whom theborrower was purchasing hadonly acquired the propertywithin the last month or two.

The letter intimated that, havingrepossessed and sold the property,the lenders had sustained a loss andwere holding Firm Y liable. Whilethis claim may involve issues ofcausation and quantification whichare less clear cut, if the lenders’allegations are justified, then itappears, on the facts stated, thatFirm Y has omitted to comply withexpress provisions of the lenders’instructions which are expressterms of the contract between thelenders and Firm Y. Lenders’ generalinstructions are effectively achecklist of points to be addressed,documented and reported on asappropriate.

Unimplemented undertakingsFirm Y acted for B in the purchaseo f a f l a t . P r o p e r t y E n q u i r yCertificates produced by the sellers’solicitors disclosed the existence ofan ou t s t and i n g no t i c e . A f t e rdiscussion, the sellers’ solicitorsagreed that the letter of obligationwould incorporate an undertakingon behalf of their clients to deliver areceipt and discharge.

Following settlement, the file wasfee’d up and archived. The sellers’solicitors were never chased for

delivery of the outstanding receiptand discharge. When B came to sellthe flat some years later, the noticewas still outstanding, the previousowners hadn’t paid the localauthority and were now untraceableand B was required to attend to thisin order for the sale to proceed.

How do your ensure that yourclients don’t find themselves in thesame situation as B? On the factsstated, it appears there may havebeen an omission on the part ofFirm Y to diary the outstandingundertaking and, if necessary, tomake B aware of the situation andB’s options in the event of thesellers’ failure to implement theirundertaking. Effective diarying isclearly a critical element of avoidingthis sort of situation.

The information in this page is (a) intended to provide guidance on

matters of practical riskmanagement and not on issues of

law and (b) is necessarily of ageneralised nature. It is not specificto any practice or to any individual

and should not be relied on asstating the correct legal position.

Alistair Sim is Associate Director inthe Professional Liabilities Division at

Marsh UK Limited [email protected]:

Journal

MATRIMONIAL

a. Registration of Agreements in Books of Council and Session

The Committee considered the question ofconfidentiality in relation to documents registered inthe Books of Council and Session which is a publicregister accessible by researchers, journalists andothers.The Committee agreed that clients’ instructionsshould be obtained before registering agreements butrecognised that in many if not most cases thearguments in favour of registration would outweigh thearguments against.

b. Breach of Contact OrdersThe Committee were asked to consider the conductof solicitors in breach of contact situations. It wassuggested to the Committee that solicitors who simplyintimate that their client is withdrawing contact withoutmaking any further comment and in particular withoutindicating that their client had been advised againstdoing so were acting improperly. The Committee didnot agree. A solicitor’s duty is to advise his own client.Such advice is confidential and the Committee felt thatwhilst a client might be in breach of the Court Orderthere is no duty on the solicitor to do more thanreport the factual position to the solicitor on the otherside. If in the course of proceedings to enforce aContact Order there is evidence that a solicitor hasadvised the client to ignore it, and the solicitor is foundin contempt of Court as a result, that would be amatter of conduct which would be the subject of ajustifiable complaint.

FUNDING LITIGATION

a. Duty To Advise On Legal AidThe Committee considered the nature of a solicitor’sduty to advise a client about Legal Aid. They agreedthat the duty is to advise a client of the existence of theLegal Aid scheme (including Legal Advice & Assistance)but does not extend to a detailed consideration ofwhether a specific client may be eligible for Legal Aidunless the client requests such consideration and thesolicitor is willing to do so. If the firm does notundertake Legal Aid work, they have a duty to makethat known to prospective clients and to advise themthat if they wish to apply for Legal Aid they shouldconsult another firm of solicitors.

b. Legal Expenses InsuranceThe Committee considered that legal expensesinsurance and other forms of private funding areentirely different from Legal Aid. Legal Aid is a statutoryright only available through the solicitor of the client.There is no duty to enquire if the client already has alegal expenses insurance policy, as it is reasonable toexpect the client to bring this to the solicitor’s attention.

EXPERT WITNESS REPORTSThe Committee were concerned to receive a letterfrom an expert who had been asked for a report.Thesolicitors had asked for any adverse comments to besent under separate cover. The Committee felt that toseek a report from an expert in these terms wasimproper and that the expert was entitled to seekconfirmation in writing that the “good” report wouldnot be used to mislead the other party to the matteror their agents or insurers.

MINUTE FOR RECALL OF DECREE –DEFENCE “DEBT DENIED”The Committee considered the conduct of a solicitorputting forward a defence of “debt denied” in supportof a Minute for Recall of a Decree in absence which hadpassed against the same firm of solicitors.The solicitorshad previously acknowledged the debt, had made partpayment by cheque and had offered to pay the balancewithin a specific period. The Sheriff complained aboutthe solicitors conduct as he felt that the defenders werethemselves officers of the Court and had stated aspecific defence which was contradictory to the termsof their own letter. The Committee agreed that inrelation to a Minute for Recall of Decree the solicitorhad knowingly misled the Court by stating “debtdenied” as a defence where he had already acceptedthat the debt was due and payments to account hadbeen made.

DEBT COLLECTION – USE OF HEADEDNOTEPAPERIt was held to be improper for solicitors to allow a debtcollection agency to send out letters on the solicitors’headed paper, although in this particular case the lettersbore the registered office and registered number of thedebt collection company.The Committee accepted theundertaking by the solicitors concerned to deal withmatters themselves in future by electronic transfer ofdata to their own office before such letters were sent.

[email protected]:

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

In Practice


JournalVideoconferencing


A modern way to meetDavid Steele reports on a quiet growth in the use of videoconferencing by the legal profession

The conduct of complex legal conferences, involvinglawyers and clients from across the globe, is in the midstof a major revolution.

While in the past legal teams, their clients andsometimes bundles of documents and evidentialmaterial have had to move thousands of miles at greatexpense in travel and chargeable hours now all partiescan be brought together by the wonders of technology.

There has already been a remarkable growth in the useof videoconferencing in the legal profession and now anumber of major companies are gearing themselves upto improve the service available even further.

Much has been written and said about the growth ofthe use of video links to protect children and othervulnerable witnesses in delicate criminal proceedingsbut the growth of its use in commercial practice hasbeen an altogether quieter affair.

For understandable reasons the profession was initiallysomewhat nervous about conducting business which forpersonal or commercial reasons requires the highestlevels of confidentiality.

With the increasing sophistication of the videoequipment itself, and more significantly the encryptionof the signals which keep them away from pryingelectronic eyes, the use of such systems has becomemore and more attractive to legal firms.

The advantages can be looked at in two ways – from abusiness perspective and what cost savings are involvedand from a client service perspective and how that canbe achieved in the best possible way.

From the former the firm will see improved accessibility,increased productivity and faster decision making withthe added advantage of considerable cost savings due toreduced travel and “down time” of key personnel.

As far as client service is concerned there are manypotential advantages including faster resolution ofdifficulties, a reduced need to travel and be face to facewith an adversary or business rival and in most cases amore relaxed environment in which to do business.

Lesley Wilson, senior administrator in the Law Society ofScotland’s Update Department, is seeing an increase ininterest from legal firms in videoconferencing as abusiness tool.

She said:“We have facilities in our offices which are usednot only by the society for conducting business but bylegal firms who want to hire the rooms, the equipmentand the expertise.

“It now has global possibilities and only a week or soago we had a solicitor in who wanted to conduct ameeting with a colleague in Australia.”

Lesley Wilson sees the growth continuing and hopesthat more firms will try the technology.

She added: “We have conducted business meetings,including council meetings because some membersincluding the President work in remote locations, andalso use videoconferencing for training and seminars.

“It is ideal for lectures and discussion groups althoughworkshop based seminars are perhaps betterconducted with all the participants together. I believe itis the way forward.”

Heidi Berry, marketing manager of Global VideoCom,o n e o f t h e c o u n t r y ’ s l e a d i n g p r o v i d e r s o fvideoconferencing facilities, sees the legal profession as anatural progression of the work they have been doing inthe public and private sectors.

JournalVideoconferencing


She said: “We have a wide range ofclients throughout the world whohave a need to communicate quicklyand efficiently and who come to usfor the equipment to do it.

“The service has come a long wayin a few years and now with theincreasing use of Internet Protocol(IP) we are able to give greaterguarantees of quality of image andthe reliability of the line. In the earlydays of videoconferencing therewere issues over poor qualitypictures, lack of lip synch and theunreliability of lines. Those are allthings of the past.”

As far as the legal profession isconcerned Heidi Berry lists four keyadvantages of using the new system:

■ Multipoint videoconferencingbetween clients, solicitors andcounsel which can take placedespite vast geographicaldistances.

■ Witnesses and experts beinginterviewed via videoconference,thereby meeting tight courtdeadlines more easily.

■ The use of peripherals and datacollaboration technology whichallow all parties access toevidence and otherdocumentation with absoluteclarity.

■ Competitive advantage,increased client satisfaction andfaster resolution of internationalnegotiation. Furthermore, clientsmay be more inclined to dealwith law firms using similartechnology.

Global VideoCom has its headoffice in Slough and offices in thecen t r e s o f bo t h London andEdinburgh and as well as offeringfacilities at each of these centres forsetting up conferences is able totake the technology to the client.

Also in Edinburgh at its PalmerstonPlace headquarters is European inScotland (EiS) which was set up tenyears ago to provide a wide rangeof business support services andw h i c h p r o v i d e d t h e f i r s tvideoconferencing suite in Scotland.

The company recognised at anearly stage that technology had avital role to play in the developmentof international business and it nowleads the Scottish market inEuropean and global video linking.

General manager Alastair Angus isalready seeing a rapid growth in theuse of their services by the legalprofession but admits there is still along way to go.

He said: “There was a reluctanceamong the more traditional lawfirms to embrace such a new formof communication. They wereconcerned about security andwhether or not the work carriedout on video links would carrysuitable weight and be acceptablewithin the law.

“Let’s face it there were also a fewfat cats who rather liked the idea oftravelling the world and living in thetop hotels at someone else’sexpense.

“With the help of lawyers we haveworked to reassure potential usersof the system that the technology issafe and secure and that they andtheir clients can have completepeace of mind.”

Among the major uses to which EiShas already put their systems is thetransmission of the evidence of

expert witnesses from Scotland tothe High Court in London duringcivil litigation.

Alastair Angus explained: “We havehad a number of cases wheremalpractice suits are beingconducted against doctors in thecourts in London and the expertevidence of a witness from Scotlandis required for one side or theother.

“That witness can come in to ouroffices and be set up within minutesto give the evidence required downa secure and confidential video linkto the court.This reduces by a hugemargin the costs to the legal systemand also the time that this experthas to be away from the importantwork which needs to be done attheir clinic or hospital.”

The company also handled the caseof a witness from Scotland who wasunable to travel to attend a murdertrial in Australia but gave vitalevidence down a secure video link.

Alastair Angus added: “We areconfident of the service and that itwill continue to provide a valuablesupport to the legal profession.”

Meanwhile the use of video for thepurposes of the smooth running ofthe legal system is now also widelyused in the criminal courts inNorthern Ireland.

In the past remand prisoners havehad to be brought from jailsthroughout the province for interimhearings at the courts in Belfastwith the resultant costs in transportand manpower.

Now, however, after agreementamong prosecuting authorities,defence lawyers and the accusedpersons themselves, many remandhearings are conducted remotelywith the prisoner going to a privatevideo room to see and be seenback at the court.

The courts have now to spend lesstime on interim hearings and theprison system does not have todevote many hundreds of manhours to the collection and safetransportation of accused.

Global VideoCom has all its detailsposted at www.g loba lvc .co.uk while European in Scotland is atwww.euroscot.net.The Law Societyo f S c o t l a n d w e b s i t e i s a twww.lawscot.org.uk.

Scots lawyersencounter EurodevilsEvery 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 oldlegal rules and principles, to be found in the samesources of law? Feel like it would be nice to tryout another legal system for a while, maybe evenin a different language? Yes? Well, this year’sEurodevils have been given exactly thisopportunity.Ten young lawyers, all from differentEuropean jurisdictions, are currently trying theirbest to practice law in Scotland – and they arequite enjoying themselves doing it.

Many lawyers in Scotland will have come acrossthe European Young Lawyers Scheme, or itsparticipants, the Eurodevils, before.The scheme isan annual programme, and it celebrates itstwenty-seventh anniversary this year. The aim ofthe six-month scheme is to introduce younglawyers from Europe to Scottish law. It is run bythe British Council, and is mainly divided intothree parts: approximately two months are spentat the Faculty of Law of Edinburgh University (anacademic introduction to the law and governancein Scotland), two months in legal offices or withpublic bodies in Edinburgh or Glasgow and finallytwo months attached to members of the Facultyof Advocates at Parliament House (hence theepithet “Eurodevils”). The programme alsoincludes a one-week study visit to Belfast.

Taking part in this year’s scheme are ten youngmen and women, all from different Europeanjurisdictions (Belgium, Estonia, Finland, France,Germany, Hungary, Lithuania, Portugal, Spain andSweden). Most are in their late twenties or earlythirties. They are fully qualified lawyers withintheir own legal systems, but have decided to taketime out in their careers to learn about Scottishlaw and culture. As Miguel Fabre, the Portugueseparticipant, puts it: “Taking part in the scheme isnot only a challenge professionally, trying topractise in a foreign language and applying awhole new set of rules, but also a great chance tolearn about a different country – when I wasaccepted for the scheme, I knew that I definitelyhad to take the opportunity.”

The Eurodevils arrived to Scotland in mid-Januarythis year, and began by attending five weeks ofintroductory courses at the University ofEdinburgh. A number of seminars were held,covering a broad range of topics.These included,for example, much appreciated sessions withLord Reed (on Human Rights) and ProfessorBlack (on the Lockerbie Trial). In addition to theseminars, visits were arranged to the Court ofSession and to the Procurator Fiscal’s Office.

During the initial academic period, manyopportunities were also given for the Europeansto familiarise themselves with Scottish culturaltraditions.The German Eurodevil, Maike Baumann,explains: “Yes, we were, for example, invited to aceilidh during our first week here.We had no ideawhat it was when we went, and did not know thatwe would be expected to dance. We all did ourbest though, and we had a great time. I thinkeveryone was especially impressed with thedancing moves of Kimmo (the Finnishparticipant)”. The Eurodevils then went on toa t tend a t r ad i t iona l Bur ns Supper a t the

Caledonian Hotel, arranged by the university’sLaw Society, where many of them got their firsttaste of haggis.“It was a wonderful night, and it wasalso the first formal dinner I have gone to where Ihave felt like I stood out because I was wearingtrousers”, jokes Renaud Simar from Belgium (withreference to the fact that a great number of themale guests were dressed in their kilts).

After the initial courses, and after spending a weekin Northern Ireland, the European lawyers startedtheir placements with different Scottish legaloffices just before the end of February.This year,the Eurodevils were on placement with a numberof Scotland’s top firms of solicitors, as well aspublic bodies. Thanks go to Balfour & Manson,Brodies, Burness, Fyfe Ireland, Ketchen & Stevens,Maclay Murray & Spens, McCourts, McClureNaismith, Simpson & Marwick, Stevenson &Marshall, Tods Murray, Employment Tribunals,Procurator Fiscal’s Office, Crown Office, theScottish Executive and Scottish Law Commissionfor providing placements. “The placements are animportant part of the scheme”, explains Joëlle

JournalEurope


From left to right: Lionel Vuidard (France), Raminta Karlonaite (Lithuania), Maike Baumann (Germany),David Löfgren (Sweden), Miguel Fabre (Portugal), Joëlle Godard (University of Edinburgh - programmedirector), David Preston (Vice-President, Law Society of Scotland), Mari-Liis Tors (Estonia),Kimmo Nikulainen (Finland), Gerda Vastagh (Hungary), Renaud Simar (Belgium), Carmen Escudero (Spain).

Godard, the Academic Director forthe programme, “and they havegenerally been much appreciated byboth the participating firms and bythe Eurodevils”. During theplacements the European lawyersare doing their best to assist theirhosts, while learning about thepractical workings of the Scottishlegal system. David Löfgren, theSwedish participant, says: “It isi n d e e d a v e r y i n t e r e s t i n gexper ience . One th ing I havenoticed is that the questions askedby the clients are generally the samein Sweden and Scotland, whichmakes sense since they have thesame concerns. A big difference is,though, that here I do not know anyof the answers without lookingthem up”.

From May and up until July this year,which is when the programmeends, the Eurodevils will have thechance to “shadow” advocates atParliament House. “This is a uniqueoppor tun i t y, and we a l l l ookforward to it”, says CarmenEscudero from Spain. She goes on:“Most of us are from countrieswhere there is not a split lawyers’profession, but, by contrast, thecareer as a judge is a separate one.This will give us an excellentopportunity to learn about theScottish professions up close.”

The Eurodevils are also enjoyingScotland and Scottish culture intheir free time. “We are trying tosee and do as much as we canwhile we are here”, reports theFrench participant, Lionel Vuidard,“and so far we have kept ourselvesquite busy.” Excursions have beenmade by the Eurolawyers tohistorical towns such as Stirling andSt Andrews during weekends, anda considerable number of nightshave been spent discovering thepubs of Edinburgh. “All of us arevery impressed by how friendlypeople are here, and how easy it isto have fun when you go out”, saysRaminta Karlonaite of Lithuania.Mari-Liis Tõrs, the Estonianparticipant, agrees: “Yes, and thecountryside here is beautiful. Theexperience from the professionalpart of the scheme is certainly onlyone of the many good things thatwe will take with us when we goback home in July”.

JournalEurope


[email protected]:

Practice in EuropeRecognition of professionalqualifications under discussion

EU businesses and organisations will soon have the opportunity of assuminga new European identity through the planned .eu domain name. In October2001 the Commission put forward an amended proposal for a Regulationwhich would put in place the framework for the .eu suffix. The proposal wasadopted by EU ministers at the Telecommunications Council at the end ofMarch 2002.Although this means that the domain name has received officialapproval, there are still a number of formalities and procedures to becompleted by the Commission before it can become operational. TheCommission will publish a call for expressions of interest for theorganisation that will operate the Registry for the .eu domain name in thecoming months.The registration of .eu domain names is expected to startin 12-18 months.

O n 2 0 M a r c h 2 0 0 2 , t h eCommission published a draftD i rec t i ve se t t i ng out gener a lprinciples for the equal treatmentof temporary workers in anattempt to bring them into themainstream of the labour market.The Directive, to be adopted underthe co-decision procedure (whichputs the Parliament and the Councilon a level footing in the legislativeprocess), offers temporary agencyworkers the right to the same paya n d c o n d i t i o n s a s r e g u l a r employees in cases where theirwork is equivalent and the workerprofiles are similar.The proposal willallow temporary workers to takeadvantage of maternity and sickleave, pension schemes and training.The provisions oblige employment

agencies to make sure that “userundertakings” - those companieswhich use temps - comply with therules. However, the provisions willnot apply where a worker is apermanent employee of the agency,and if the employment relationshipitself affords adequate protection tothe worker. Neither will it apply incases where the temporary workeris replacing a better qualified ormore experienced employee. TheUK lacks specific legislation on therights of temporary workers andUK employers’ associations haveexpressed opposition to theproposal.The Parliament will give itsOpinion to the Council shortly,either approving or amending theproposal.

Employment LawEqual Rights for Temporary Workers

In an attempt to facilitate the free movement of professionals, the EuropeanCommission has come forward with a proposal on the recognition ofprofess ional qual i f icat ions (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 – namelythe Lawyers’ Establishment Directive and the Lawyers’ Services Directive -as these Directives concern the right to practise rather than professionalqualifications. However, the proposal will cover the recognition of lawyers’professional qualifications. As the proposal currently stands, lawyers wishingto have their qualifications recognised in another Member State would havea choice between an aptitude test and an “adaptation” in the host MemberState. The text has now been sent to the European Parliament and theCouncil of Ministers for their views.

information:If you would like furtherinformation or if you wouldlike to subscribe to any of theservices provided by theBrussels Office (BrusselsAgenda, EU Documentationor Enquiry Service) orGuidance Notes which are all free of charge,please contact us at:

The Law Societies’ Joint BrusselsOffice,142-144 Avenue de Tervuren,B-1150 Brussels, Belgium,or DX 1065 BDE BelgiumTel: 00-32-2-743 85 85 Fax: 00-32-2-743 85 86 and by e-mail:[email protected]

Information is also availablefrom the InternationalRelations section of theSociety.

Tel: 0131 476 8132

Fax: 0131 225 4243

Electronic CommerceEuropean businesses set forchange of identity through ‘.eu’

Law Reform


In and outof the Houses

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.

Outwith the parliaments, representatives of theSociety’s Licensing Law Working Party gaveevidence to the Nicholson Committee onreform of the liquor licensing regime and, inparticular, on amendments to the Licensing(Scotland) Act 1976.

UK Parliament The Proceeds of Crime Bill has progressed fromthe House of Commons to its committee stagein the House of Lords.This legislation will changesolicitors’ duties in reporting suspected moneylaundering.The current subjective test based onknowledge of the client will be replaced by anobjective test of whether a solicitor wouldreasonably suspect funds to be the proceeds ofcrime. There are also extended provisions forcriminal confiscation orders and, for the firsttime, property will be recoverable through thecivil courts in the UK.

The Enterprise Bill will significantly change UKcompetition law. It will give new powers andstatus to the Office of Fair Trading, amend theconstitution and function of the CompetitionCommission, create new cartel offences, permitclass actions under the EU Injunctions Directiveand amend the law of insolvency.

The Tax Law Committee is working with the on-going review of capital gains tax and theconsultation process on the Government’sproposals to change stamp duty. TheCommittee is also considering the Finance Billfollowing on April’s Budget.

The Scottish ParliamentThe Criminal Justice (Scotland) Bill is so wide-ranging that many have compared it to aMiscellaneous Provisions Bill. The contentincludes public protection, victims’ rights, sexualoffences, prisoners, drugs courts, non-custodialp u n i s h m e n t s , c h i l d r e n ( i n c l u d i n g t h econtroversial “smacking proposals”), evidenceand procedural issues, new provisions onbribery and corruption, criminal records, localauthority functions and amendments to the

Public Defence Solicitors scheme, police ranks,jury matters and Northern Irish searchwarrants. The debates on this Bill will be longand involved and will impact on every criminallaw practice.

The Land Reform (Scotland) Bill is about toenter its Stage 2 proceedings whereamendments may be proposed. The Society’steam gave extensive evidence to Justice 2Committee at Stage 1 and the Rural AffairsCommittee is drafting amendments for theCommittee’s consideration.

The Justice 1 Committee Inquiry into theRegulation of the Legal Profession in Scotlandprogressed with the recent publication of anoptions paper for consideration by all involvedin the inquiry. The paper sets out the followingeleven discussion points:

1 The Committee is not in favour of theoption of a completely independent system andbelieves that it would be more effective tomaintain the present system of joint regulationwith increased independence. Do you agree?

2 The Committee is aware of the practicaldifficulties which could be associated with thecreation of a single gateway for all complaints.Do you think that a single gateway should becreated? If so, how do you think that it wouldoperate in practice?

3 The Committee recommends enhancingthe powers of the Scottish Legal ServicesOmbudsman as outlined in the paper (both inrelation to the Law Society of Scotland and theFaculty of Advocates). Do you agree?

4 Whilst the Committee favours strengtheningthe conciliation process, requiring firms to havea complaints procedure, with a delegatedperson to deal with complaints, it alsorecognises that such a procedure could beproblematic for small firms and sole practitioners.The Committee seeks views on how theconciliation process could be strengthened inpractice.

5 The Committee is inviting views on whetherthe professional bodies should be encouragedto investigate small negligence claims within thecomplaints procedure, rather than rejectingthese, and referring them to a solicitor.

6 In your view, should compensation beoffered for a complaint about an individualso l i c i t o r ’s conduc t ? I f s o , unde r wh i chcircumstances?

7 The Committee favours increasing themaximum level of compensation which asolicitor can be ordered to pay a client inrelation to inadequate professional services withprovision for regular increases in the maximumcompensation. Do you agree? If so, what shouldthe maximum level of compensation be?

8 Do you think that the definitions of acomplaint could be amplified and clarified? If so,how could this be achieved?

9 The Committee favours the introduction ofdelegated powers to allow final decisions aboutcomplaints to be made by Committees of theLaw Society rather than the Council. Do youagree?

10 Are you of the view that lay involvement inthe complaints process for the Law Society ofScotland and the Faculty of Advocates should beincreased? If so, how could this be achieved?

11 In your view, how should any recommendedchanges to the system be funded? Should thesechanges be funded by:

(a) the Government;

(b) the professional bodies; or

(c) both the Government and theprofessional bodies?

The full options paper is on the news pages ofthe Society’s website at www.lawscot.org.uk.Comments from members on the discussionpoints, the options paper or any other Bills orconsultations mentioned are welcome andshould be marked for the attention of MichaelClancy and sent to:

[email protected]:

Journal

JournalReview

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: [email protected]

Palmer’s Limited Liability Partnership LawA volume featuring the famous Palmer nameshould promise so much to a corporate lawyer.So many editions of Palmer’s Company Law haveupdated us, educated us, andgenerally impressed with thelevels of scholarship andresearch stemming from thegreat Sir Francis Palmerhimself. The editorial teamresponsible for this work isthe team responsible for thecurrent edition of that work. Itcomprises six professors andour own David Bennett asScottish editor. A fine start.

The misgivings begin at thevery beginning. I should stress that thesemisgivings relate not to the quality of the bookitself, rather to the subject matter. The bookcomprises some 250 pages of text, the remaining550 or so pages comprising the Act, Regulations,forms, legislation amended by the Act and a draftStatement of Recommended Practice. Othersmaller works do not have the space for this.Some which I have seen simply recognise thatScotland exists, but decline to go there.The factthat the Scottish dimension is included in all the

relevant parts of the book, and the differencesbetween the two animals that are Scottish andEnglish partnerships recognised is a tribute to Mr

Bennett. This is not an Englishbook featuring one chapter witha kilt, but one which is useful forany UK practitioner.

So why the misgivings? One onlyhas to read the Preface to findout. A review of company andpartnership law is now overdue.This Act, however, has noconnection with either review,but was an attempt to protectthe Big 5 accountancy firms(whether this numeral will be

accurate when this goes to press is a mootpoint), and prevent a move offshore wherelimitation of liability was possible. The legislation,we are told, was enacted, “after someconsultation, but little consideration in depth.” Forexample, we are now left with two differentversions of section 110 of the Insolvency Act1986 on the statute book.The law is so obscurethat Part C of the book is an attempt to providea statutory text of Acts applicable as modified toLLPs; however, the editors stress that this is not

an authorised version, simply a “best guessapplication of the modifications to the existingtext.” The preface ends, “The law is stated asknown to, or divined by (my emphasis), theeditors on April 6 2001.”

One does wonder how often this strange hybridwill be used in practice, particularly when it willgenerally be taxed as a partnership (unless it goesinto liquidation when it will, confusingly, be taxedas a company). If that is the case, many of us mayfind that this volume gathers more dust thanmany of the tomes on our library shelves.The lawwill probably have to be clarified sooner ratherthan later, which makes me wonder, not for thefirst time, why many more books are notproduced in loose leaf version withaccompanying CD ROM.

Let us congratulate Mr Morse and his colleaguesfor their hard work and scholarship. Let usbemoan, once again, the undue haste and lack ofattention to detail shown by the parliamentarydraftsmen of today. But rush to our bookshops tobuy this? I cannot help but think we will not beswamped by clients seeking the conversion.

Tom Johnston,Young & PartnersBusiness Lawyers, Glenrothes and Dunfermline

Edited: Morse & Others

Sweet & Maxwell

Price £125

ISBN 0421 740 000


JournalNotifications


PATERSON,Tracy Elizabeth,LLB(HONS) Dip LP

Entrance Certificatesissued during 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

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

Applications for admission March/April 2002

MONDAY 10 JUNE 2002Scots Commercial Law 1000 - 1200

1330 - 1530Professional Responsibility (if required) 0900 - 1215

TUESDAY 11 JUNE 2002Scots Private Law 0900 - 1200

1330 - 1630Accounting (if required) 0900 - 1200

1330 - 1630

WEDNESDAY 12 JUNE 2002Evidence 1000 - 1200Procedure (if required) 1000 - 1200Scots Criminal Law 1330 - 1630

THURSDAY 13 JUNE 2002Taxation 0900 - 1200European Community Law 1330 - 1630

FRIDAY 14 JUNE 2002Public Law and the Legal System 0900 - 1200Conveyancing 1330 - 1630

The Oral Examinations will be held on Wednesday 26June. Candidates will NOT be required to attend Oral

Examinations unless they are notified that they must doso. Enrolment forms may be obtained from Treena Jobson,

Senior Administrator (Legal Education), 26 DrumsheughGardens, Edinburgh EH3 7YR, and these should be lodged

no later than Friday 10 May. The fee for a first attemptat each examination is £40.00 and for each subsequent

attempt, £60.00.

Examinationstimetable for the next diet of examinations – June 2002

Documents

OF THE LAW SOCIETY OF SCOTLAND THE LAW SOCIETY OF SCOTLAND INTERMEDIATE DIETS: FLAW IN EMERGENCY LEGISLATION? MORTGAGE RIGHTS ACT: SERVING NOTICE ON DEBTORS INTERVIEW: DAVID PRESTON