THE OF THE LAW SOCIETY OF SCOTLAND ournal · Fiona Westwood’s view ... Society of Scotland.The...

lournalOF THE LAW SOCIETY OF SCOTLANDTHE

I N S I D E › › M E N T A L H E A L T H S U R V E Y S J . A . B . C O U R T I . T . E N G A G E M E N T T E R M S

VOLUME 50 No 6 JUNE 05JOURNALONLINE.CO.UK

OPENGATEWAY

IDEA WHOSE TIME HAS COMEStandard missives catch on

LIFE WITHOUT THE TABLEWorking out your fees

BELIEF IN CONVERSIONScots quiz Clementi

Perceptions and realities of complaints handling

OPENGATEWAYPerceptions and realities of complaints handling

The Journal: June 2005 : 3www.journalonline.co.uk

June 2005 vol 50 no 6

P14 FAIR HEARING?Douglas Mill believes theSociety’s complaintshandling should receive amore thorough appraisalthan the Executive’sconsultation paper offers

P19 FAIR AND OPEN SYSTEMA reply from the JudicialAppointments Board tothe recent criticism of itsconstitution and methods

P20 SOUND CONCLUSIONPeter Nicholson reportson the renewed interestin standard missives

P24 CLEMENTI IN SCOTLANDFiona Westwood’s viewof the challenge to theprofession here

P26 LAW AND DISORDERAlan Bayley describes theprocedures under thenew Mental Health Act

Regulars ››

P20

P26PUBLISHERSThe Law Society of Scotland26 Drumsheugh GardensEdinburgh EH3 7YRt: 0131 226 7411f: 0131 225 2934e: [email protected]: www.lawscot.org.ukPresident: Caroline FlanaganVice-President: Ruthven GemmellSecretary: Douglas Mill

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DISCLAIMERS: The views expressed in the Journal ofthe Law Society of Scotland are those of invitedcontributors and not necessarily those of the LawSociety of Scotland.The Law Society of Scotland doesnot endorse any goods or services advertised, nor anyclaims or representations made in any advertisement, inthe Journal and accepts no liability to any person forloss or damage suffered as a consequence of theirresponding to, or placing reliance upon any claim orrepresentation made in, any advertisement appearing inthe Journal. Readers should make appropriate enquiriesand satisfy themselves before responding to any suchadvertisement, or placing reliance upon any such claimor representation. By so responding, or placing reliance,readers accept that they do so at their own risk. On noaccount may any part of this publication be reproducedwithout the written permission of the copyholder andpublisher, application for which should be made to thepublisher. © The Law Society of Scotland, 2005ISSN: 0458-8711

P5 EDITORP7 PRESIDENTP9 OPINIONP10 LETTERSP13 HEARSAYP29 UPDATEP30 PROFESSIONAL PRACTICE

Setting fee levels Risk: engagement terms IT: court videoconference

P38 SOCIETY NEWSNew President, CouncilClient Relations Office EU legal proposals

P46 PROFESSIONAL BRIEFINGCriminal courtAgricultureSportDiscipline Tribunal WebsitesBook reviews

P54 PROPERTY LAWYERSeller’s survey

P56 CLASSIFIEDP60 PEOPLEP61 NOTIFICATIONSP62 RECRUITMENT

31 pages of vacancies


editorial

Peter NicholsonA solicitor with overtwenty years’ experiencein legal publishing, Peteris the editor of the Journalof the Law Society ofScotland

Suddenly, it seems, the news is allabout standard missives.At theSociety’s “Property Matters”conference in April a workshopsession told us of the scheme theHighland Faculty has been running forabout 10 years now.A registered setof conditions, adopted with theapproval of local firms, enables offersto be kept to a single page and greatlysimplifies the process of conclusion.Dundee solicitors have been basingtheir offers on a standard style formany years as well.

At the conference it was rumouredthat Edinburgh was about to go downthe same road. In fact the Edinburghand Lothians Standard Clauses hadbeen registered just the week beforeand all firms in the area were invitedto use them as from 9 May. Since thenthere has been newspaper, radio andTV coverage conveying the messagethat this is an exciting developmentfor Scottish housebuyers, and muchinterest in the concept amongsolicitors in other parts of the country.

Some may view the news withsurprise, given that the attempt in theearly 90s to introduce standardconditions for the whole countryfoundered. Others will be sceptical,knowing the protracted process ofconclusion in many transactions,where one side deliberately refrainsfrom holding the bargain as concludedfor reasons of potential personal

advantage, despite the obvious risks.

On the other side, a few have publiclyadvocated for some considerabletime, a return to the practice ofconcluding missives as soon aspossible, and advising clients that this iswhat they must be prepared forunder the Scottish system. Otherwise,they say, the system is corrupted,rendered dishonest, by those who failto conclude a bargain for reasonsunrelated to the conditions on whichthey expressed themselves as willingto deal.

The acid test of the new clauses willbe whether they have an effect on theincidence of delayed conclusion ofmissives.The Society’s guideline of1998, designed to achieve early

conclusion, was described from thepanel at the conference question andanswer session as “probably the mostignored and unobeyed guideline wehave”.The scene is set for aninteresting debate as to the balance of

interests between individual clientsand the integrity of the system.

One does not envy anyone trying todefine the point at which the interestsof the former should give way to thelatter. But more than just stress levels,whether one’s own or those of othersolicitors or clients as a whole, are atstake if the sale and purchase systembehaves in one way on paper andquite another in practice. If the endresult of habitual delay anduncertainty is that the system ends upwith all of the drawbacks of theEnglish system and no compensatingadvantages, as has been claimed, whatcan we expect for the future?

At the end of the day the market islikely to decide. Opponents of the

Executive’s plans for thecompulsory seller’s surveyclaim that the problem it wasdesigned to solve, unsuccessfulbidders for a property wastingmoney on survey fees, hasbeen solved by the marketadjusting to the practice ofoffers subject to survey. Nordoes this have to prolong theperiod of adjustment of

missives. Supporters of standardmissives and rapid conclusion claimthat certainty and results are whatclients really want. If so, what appearsto be a bandwagon heading towardstheir use will indeed gather pace.

The scene is set for a fascinating contest between supporters of the new standard missives and those who hold out for their own terms

The acid test of the newclauses will be whetherthey have an effect on theincidence of delayedconclusion of missives

TIME TO REACHA CONCLUSION


presidentCaroline Flanagan has enjoyed her year as Vice President and enters herpresidential term promising to communicate about the many issues onwhich the Society hopes to make progress

Caroline Flanaganis President ofthe Law Societyof Scotland

Well, here we are then!

When I was elected Vice President, theprospect of becoming the Presidentseemed an eternity away. How aneternity passes quickly when you arehaving fun! The most commonquestion I have been asked in the last18 months has been “How are yougoing to write the Journal column?”Tosome I have jokingly said that I mayemulate Bridget Jones’ Diary.That isnot my overall intention although Imay slip into that style occasionally.

As I write this I am not yet President –just trying on the shoes. Being the firstwoman President has excited someinterest. I would be naive to assumeotherwise.To serve the profession asPresident is a great honour.To be thefirst woman to do so makes thehonour greater.

And already life is not withoutamusement. One American lady guestat a recent dinner in DrumsheughGardens commented that she did notsee many women Past Presidentssmiling at her from the portraits onthe stairs.When I raised my eyebrowsin surprise she said she only countedone! Who could this be? The sultryJohn Elliot? The smiling David Preston?Surely not the bearded AlastairThornton? Diplomacy – for once – gotthe better of me. I did not ask.

I have been asked if I have drawn the“short straw” with the focus oncomplaints in the year ahead. I do notbelieve so at all. My first undertaking asPresident is the response to the longawaited consultation paper onhandling complaints and you will hearmuch from me on this over the nextfew months. I would encourage all ofyou to read the paper and respondthrough your faculties or firms and givethe Society your comments.Theconsultation follows on the Justice 1inquiry into regulation of lawyers inScotland, building on their

V. GOOD YEAR AS VP

I have been asked if I have drawn the “shortstraw” with the focus on complaints in theyear ahead. I do not believe so at all

recommendations and suggestingfurther options for complaintshandling.The Society genuinelywelcomes the consultation.We tookon many of the Justice 1recommendations.We have seensubstantial improvements in howcomplaints are handled.

As was the case in the Clementiconsultation and report in England, itis clear that the status quo is not anoption. Change is something theSociety has already requested.

and professional executive in theSociety offices led by Douglas Mill.Wehave an enthusiastic Council giving oftheir time largely on a voluntary basis.We have had many successes and weneed to promote these.

Some of that communication will be atfaculty visits and visits to the large firmsas well as international conferences. Sofar the highlights of my year have beenin Greenock and Arbroath. Greenocksaw your CEO and then Vice Presidentsitting on a hill enjoying an ice cream

Perhaps the key to the consultation isin the title: “Reforming complaintshandling, Building consumerconfidence”.The importance placedon the perception of complaintshandling, the Society’s most publicface, is more than clear. I hope that acost-effective and efficient realitymatters more than a perceptionwhich can be addressed or, worse,change for the sake of it. It isencouraging that the Justice Minister,Scottish Parliament, Scottish Executiveand even the Ombudsmanacknowledge the substantial progressmade by the Society. Please involveyourselves in the consultation.Whatever the Society’s response, Iwant to consult with as many of theprofession as possible in the timeavailable.

The other burning question asked ofan incoming President is what changesI hope to bring in during my year. I ama realist if nothing else. My aim is notto second-guess what the year aheadwill bring but to focus oncommunication.We have a dedicated

like two children.Venues for facultyvisits are usually hotels, city chambers,offices and libraries.The visit to theSociety of Solicitors and Procurators inAngus was different – the “Sugar andSpice” sweet shop and tearooms inArbroath (calories 3000 – v.v. bad)!Douglas Mill and I sat at the entranceto a packed conservatory (and welldone to Arbroath and the faculty forthe turnout), and did our double actfeeling a little like Val Doonican orRonnie Corbett! The visit and feedbackwas as important and useful as mysubsequent attendance at the IBAconference in Lisbon.

Finally I would like to pay tribute toDuncan Murray. His quick brain andall-round knowledge, and his ability toassimilate information on unfamiliartopics will be a hard presidential act tofollow. I have enjoyed working withhim enormously. Happily, the Societystaff and my incoming Vice President,Ruthven Gemmell, are also extremelyable and supportive.To say that I amlooking forward to the year is anunderstatement.


Predicting the future composition ofthe profession and identifying thechanges which will impact in particularon smaller firms in the post-Clementiera is like crystal ball- or stargazing.One thing however is certain: morechanges are coming and they are likelyto be even more widespread andradical than those we have seen in thepast.The abolition of scale fees, thefreedom to advertise, the possibility oflimited liability, the advent of solicitoradvocates and devolution issues will allfade into a limited if not remotesignificance when compared with thelikely impact upon the profession inyears to come post the Scottishversion of Clementi. My own view isthat the contours of the professionallandscape in 10 to 20 years, nevermind 30, will be virtuallyunrecognisable.

For the traditional small firm, whetherin the cities (though nowadays infewer numbers) or in the provincialtowns and rural locations, thesqueeze of present commercialpressures means that the principalmotivation is survival – the mostbasic of all instincts.

The buoyant merger activity of recentyears among smaller firms is largely ifnot primarily explained as being anegative and defensive reaction to achallenging market place.

Smaller firms, and for the purpose ofthis article I have arbitrarily selectedthose comprising six partners orfewer, face unprecedented challengesin uncharted waters.

Solicitors in the smaller firms (whichstill, in Scotland, comprise themajority of the profession) are livingin a world where the big arebecoming bigger and richer, whilemany of the smaller firms arecompeting for what is left oftraditional markets like domesticconveyancing, which are now soseriously under pressure that theycan no longer provide the returns

previously enjoyed, which are simplynot attainable.

The annual revenue expenditure bythe big fish, for instance on aspectsof the business like IT or marketingor human resource training alone,dwarfs the annual turnover of manysmaller firms.

The Law Society of Scotland isstruggling with the challenge ofcatering for, and being relevant to, anincreasingly polarised profession. Selfregulation is past praying for.The

The answer of course is that for manysmaller firms the consequence of themove to becoming either a solepractitioner or a very small practiceunit is that they will often thenstruggle to obtain that critical mass ofbusiness coming from only one or twopractice areas.There are someexceptions to this, typically those incriminal legal aid; however in generalclients simply may not be prepared torub along with the new businessmodel.There is sound evidence that

critics here have won the day;implementation of external regulation,at whatever cost and of doubtfulpedigree, is about to be foisted on us– it is but a matter of time.

The ultimate impacts of whatever“McClementi” actually allows, once ithas been thrust upon us are difficultto foretell, but certainly they will onlyaccelerate and catalyse the alreadyinordinate pressures of market forceson smaller firms.

The traditional model of the generalpractice is under threat.The move toconvert to smaller and morespecialised units, already a trend inboth the cities and provincial towns,will continue inexorably and thetraditional country practice of ageneral nature is already in severalareas a thing of the past. Clearlythose firms will not all beextinguished and there will beimpressive exceptions.The number oftraditional firms will however radicallyreduce and the quality, strength andreputation of the practice units areunlikely to be maintained.

Perhaps there is no ideologicalcriticism of moving to smallerindividual units.Why should it matter?

many clients, typically those whotraditionally were the lifeblood togeneral practice, still want aprofessional and business relationshiprather than have to shop around.

Where there is no significantinfrastructure within the smallerfirms, the realities and consequencesstrike home for the older partnersbecause it is going to becomeextraordinarily difficult for them tosecure an exit route.

Where for example is the:

■ reinvestment?

■ pension?

■ goodwill payment?

■ capital to repay the bank ?

■ succession plan?

■ future of the business?

So the future is certainly interesting,challenging and dynamic.This is thetime like never before for the smallerfirms to set aside time for strategicthinking and action. Perhaps like Alicein Wonderland when she asked“Which road do I take from here?”,the answer is “It all depends whereyou want to go”!

opinionopinionA view from the High Street offering the perspective of the smallerpractice unit, in response to the predictions for the future of theprofession featured in the April issue

My own view is that the contours of theprofessional landscape in 10 to 20 years,never mind 30 will be virtually unrecognisable

Graeme McKinstryis a solicitor in privatepractice who 21 yearsago established theMcKinstry Company, ageneral High Streetpractice in Ayr offeringadvice across sixpractice areas

A ROAD TO SOMEWHERE

The Journal: June 200510 : www.journalonline.co.uk

letters

Send yourletters toThe Editor,The Journal,Studio 2001,Mile End,Paisley PA1 1JS

f: 0141 561 0400 e: [email protected]

I have read the parting shot of PresidentDuncan Murray (Journal, May, page 7) and Inote that in regard to legal aid, all that is saidis “the Strategic Review of Legal Aid willemerge shortly”. In the article about theincoming President Caroline Flanagan (page36), she believes “one of the biggest issuesof her term will be legal aid”. In those fewwords, both the outgoing and the incomingPresident address legal aid. It may be thateither or both will claim there is reallyinsufficient room to say much more.

In relation to trainees, Caroline Flanaganindicates that she wishes to “make sure thatstudents are aware that the road into theprofession is increasingly competitive”.Thatis probably correct, but it is alarming thatlegal aid practices and especially thosedealing with criminal legal aid have found itvirtually impossible by and large to employtrainees. Indeed, employing assistants isvirtually out of the question. Never havethere been so many “grey heads” who areappearing in court particularly as membersof the criminal bar, certainly in Glasgow andthe central belt, where I appear.This leadsme to another matter.

Over the years and recently, the fears ofcriminal legal aid practitioners have notbeen dispelled by the inability of the LawSociety of Scotland through its Council toobtain appropriate increases in legal aid fees.We have had a paltry increase of minimalproportion within the last year after waitingsome 13 years. In addition, the fees forsummary criminal work are nothing short ofdisgraceful, and it is suggested that solemnwork may proceed on a block fee basis.Thisis equally ludicrous and is arguably a breachof the human rights of criminal legal aidapplicants, in the sense that clearly they willbe deprived of a fair trial simply becausesolicitors will be unable to carry out theappropriate work. If they do they will bebankrupted.That may be the long termintention of the government, to allow

everyone to obtain compulsorily theservices of the PDSO.

Throughout the years however, mycolleagues and I share the view that despitethe protestations of office bearers andothers in the Council, there is a veil ofsecrecy permanently hanging over thequestion of negotiation, in regard to criminallegal aid particularly, with the government.There seems to be the mistaken belief thatif the Council tells members what ishappening, this will somehow prejudice anynegotiation.This of course is nonsense giventhat there has been virtually no success inthe past 13 years in obtaining anappropriate increase in the fee levels.

It is my considered view therefore that theLaw Society of Scotland has done little inthe way of promoting the interests ofcriminal legal aid practitioners, or at least hasbeen largely unsuccessful in so doing.To thatend, the recommendations of the ClementiReport arguably should be welcomed in thesense that I have argued for many years, andin particular when I was President of theGlasgow Bar Association at the end of the70s and the beginning of the 80s, that theSociety simply cannot serve two masters, i.e.the public and the profession.The interestsof the profession should come first andforemost. It may even be that the Societycannot properly look after the interests ofthe criminal bar and perhaps we shouldconsider forming ourselves into anorganisation similar to the Criminal TrialLawyers of America!

As a final thought, I wholeheartedly agreewith Alistair Bonnington’s remarks thatgovernment interference in the shape of theJudicial Appointments Board is to beabhorred and he is absolutely right whensaying “those who do not practise in thecourts cannot possibly make intelligent,informed selection decisions”.

James S Peacock,Peacock Johnston, Glasgow

Unlike the high regardin which I hold yourown esteemedperiodical, I have littleuse for The Firmmagazine. However, arather disturbing articlefrom the May editionwas brought to myattention, highlightingthe career to date of aMr Auchincloss,solicitor and director ofthe Public DefenceSolicitors Office.Apparently, MrAuchincloss believesthat:“his lawyerscontinue to give PDSOclients a better servicethan private firms coulddeliver”.As I ponderedwhether the Societymight consider such astatement to be inbreach of theadvertising rules, I readon to find MrAuchincloss describedas:“a self-confessedcourtroom junkie”, andlater in the piecediscovered:“Anotherissue that Auchinclossfeels strongly about isdrugs in prisons, ofwhich he has first handexperience.” Suchcandour has, of course,to be admired but Itrust it will serve as awarning to others thatdrugs, whetherexperienced in or outof prison, are liable tomake one say stupidthings.

William HS McIntyre,Russel & Aitken, Denny

Strangeeffect ofdrugs

No gainsin legal aid


I recently acted for a legallyaided pursuer in areparation case.

A week before the proof Ientered into telephonesettlement discussions withmy opponent.Thenegotiations were abortive.

Three days before the proofdiet I received a copy letterwhich my opponent hadsent to the Scottish LegalAid Board, purporting torepresent the contents ofthe settlement discussions,and in particular referring toa concession I was allegedto have made.

I had always understoodthat settlement negotiationswere privileged and couldnot be disclosed withoutconsent.

A complaint to the LawSociety of Scotland wasmade.The complaint wasrejected.The Society’s viewwas that negotiations wereprivileged only in so far asthey could not be foundedon in the actual litigation.Otherwise they could bedisclosed to any other thirdparty without consent.

I still believe that this iswrong, and that by impliedagreement settlementnegotiations cannot bedisclosed to a third partyexcept by consent.

However practitionersshould be aware of theSociety’s position. It hasimportant and lamentableconsequences for allpractitioners engaged insettlement discussions.

At the same time I receiveda formal letter from theSociety asking for some legalaid files to be sent to a thirdparty solicitor for qualityassurance auditing.Therewas no mention of clientconfidentiality.As far as Icould see, the onlydocument resembling aconsent form by the clientwas a declaration signed at

the time of the section 1application.This states:“Iconsent to the disclosure ofthis application andassociated documentationfor quality assurancepurposes and stagereporting.”

This hardly seems apt tocover files which containprivate and sensitiveinformation includingmedical records. Quiteapart from anything else,disclosure of these medicalrecords to an unauthorisedthird party would be inbreach of the current BMAmedical recordsundertaking.

In the case of Three RiversDistrict Council v Bank ofEngland [2004] UKHL 48,Lord Scott stated withreference to client privilege:“But the dicta to which Ihave referred all have incommon the idea that it isnecessary in our society, asociety in which therestraining and controllingframework is built upon abelief in the rule of law,that communicationsbetween clients andlawyers, whereby the clientsare hoping for theassistance of the lawyers’legal skills in themanagement of their (theclients’) affairs, should besecure against thepossibility of any scrutinyfrom others, whether thepolice, the executive,business competitors,inquisitive busy-bodies oranyone else”.

Privilege forcommunications in the aidof settlement and clientconfidentiality arefoundation stones of ourprofessional life.To the LawSociety of Scotland, theyappear to be trifles.

If we do not care aboutthese matters, who will?

R E Conway,Bonnar & Co, Airdrie

Confidentiality inreparation cases

While it is clear that there isconsiderably more in common thanthere is in dispute in this issue,nevertheless, the amendment to theClient Communication Practice Ruleswhich now appears to be accepted bythe Society, to the effect that failure toinitiate business with a letter of terms ofengagement shall be defined as IPS,rather than as professional misconduct,appears to be the correct position.

Everyone is agreed, for example, that aletter of terms of engagement is a verygood thing and that, while failure to issuesuch on an isolated occasion may wellnot merit any disciplinary proceedings atall, frequent or repeated failure to do sois a proper matter for disciplinaryattention, and serious cases, as forexample where an unexpectedly largebill for legal services is issued to a client,may well amount to professionalmisconduct.

What is the issue therefore whichremains in dispute? The draft regulationsought to identify failure to intimateterms of engagement as being primarilyprofessional misconduct, which would, ofcourse, have enabled and even obligedthe Society to inspect solicitors’ files forcompliance at, for example, occasions ofaccounts inspections etc, whereas theamended regulation identifies the failureas primarily one of professional servicewhich makes it much more likely thatincidences of failure will require to bedealt with only when some practicalconsequence of the failure has occurred,leading to a complaint by a client.

It has been argued in this Journal thatinstances of IPS can, in any case, betreated as professional misconduct andthat the amendment simply creates anadditional layer of discipline which would

not have been imposed by the originalregulation.That argument, of course,applies to all types of inadequateprofessional service and the logic of theargument is that all conduct which isdefined as inadequate professionalservice is in fact more severelysanctioned than conduct which isdefined as professional misconduct. Ifthat argument were not fallacious, whichit is, this debate would have uncovered anonsense in need of urgent correction.

Neither does it seem relevant to theamendment that other factors such asfrequency of offending or gravity ofcircumstances might translate theinadequate service to professionalmisconduct, for the reason thatcomparable circumstances would havethe same effect in relation to anyinstance of inadequate service. If theargument is that the Society might,arbitrarily, treat an instance of conductspecified as inadequate service as beingprofessional misconduct without thepresence such additional factors, then wemay take comfort from the rationalnature of the Law Society, which failingfrom the requirements of Sharp v LawSociety of Scotland.

The amendment achieved precisely itsintended purpose, namely, to identify thisfailure as primarily a matter ofprofessional service, rather than, withoutmore, as professional misconduct.However, the issue is narrow and thereare certainly more important issuesaffecting the interests of the professionand the public which it serves, and fromwhich this debate should not be allowedto be a distraction.

Michael Sheridan,Secretary,

Scottish Law Agents’ Society

MISCONDUCT OR IPS?

Continued overleaf


lettersMy contribution to the Mayedition of the Journal(Insolvency Briefing, page51) contains an error in thereport on AlldersDepartment Stores Ltd (inadministration), which is alsonow reported at [2005] 2All ER 122. I suggested thatwhere the administratorsadopted the contracts ofemployment of staff andsubsequently made themredundant, the costs of sodoing were an expense ofthe administration. In factthat was the positionargued (unsuccessfully) forthe Crown.To quoteLawrence Collins J at theoutset of his judgment,“Theposition of the InsolvencyServices of the Departmentof Trade & Industry is thatall statutory employment

payments, including unfairdismissal payments, arepayable as expenses of theadministration.”

Lawrence Collins J in factdecided that employeeclaims for redundancypayments or unfair dismissalcompensation did notconstitute expenses of theadministration as they werenot “wages or salary” forthe purposes of paragraph99 of Schedule B1. First, itwould be inconsistent withthe scheme of the legislationif the payments referred toin schedule 6 were to betreated as preferential, andyet all other employee-related payments were tobe paid as an expense ofthe administration, whichwould give schedule 6

payments a lesser prioritywhen the policy appears tohave intended to give thema greater priority. He furtherheld that Re Toshoku FinanceUK plc required a differentconclusion. In his view it wasnot the ratio of that casethat any liability imposed ona company which was notprovable as a debt wasthereby rendered a“necessary disbursement”.He therefore concludedthat the liabilities forstatutory employmentclaims were not covered byeither paragraph 99 ofschedule B1 or by schedule6 to the 1986 Act and weretherefore unsecured claims.

Alistair S Burrow, Partner,for Tods Murray LLP

I have read with interestCaroline Flanagan’s article inlast month’s Journalconcerning the far-reachingimplications of the ChildProtection (Scotland) Act2003, most of which cameinto force on 10 January2005.

The new President is to becongratulated for bringingthis Act to the attention ofthe profession.

I just wish to clarify that theAct applies to solepractitioners and partners,just as it does to employees,as it is an offence undersection 11 for any persondisqualified from doing sounder the Act to work withchildren in the childcarepositions identified by theAct.“Work” is given anextended meaning bysection 18 to include “workof any kind” whether or notunder a contract; the workconcerned could equally bework under an employmentcontract or the workpartners do under a contact

of copartnery.

The result is that no solepractitioner, disqualified fromdoing so, should work withchildren as a solicitor if theAct prohibits this. Partnersshould put in place, in myrespectful opinion, bindingagreements preventingpartners who are or whobecome disqualified fromdoing so, working withchildren in childcarepositions under the Act;otherwise the otherpartners may also commitan offence.To avoid criminalliability, firms may require tocarry out disclosure checksagainst both partners andemployees likely to beworking in childcarepositions as defined by theAct, as it is a defence to anycriminal charge to show thepartners did not reasonablyknow of the disqualification.

I suspect that the Societywould potentially treat anyconviction or disqualificationof a solicitor under the Actas prima facie evidence of

professional misconduct;thus the concerns forpractitioners are, in myview, wider than thepotential criminalimplications of the Act forallowing disqualified personsto work with children inchildcare positions.

I would also referpractitioners to section 2,which sets out firms’ dutiesto refer employees to theScottish Ministers in thecircumstances definedtherein. It respectfullyseems to me that firmsshould put child protectionpolicies in place to coverthese matters – help can beobtained via the ScottishExecutive booklet on theAct,“Guidance forOrganisations”, available onthe Executive website’spublications section –www.scotland.gov.uk.

George Jamieson(Accredited Child

Law Specialist),Pattison & Sim, Paisley

Priority for employee payments

Partners need disclosure checks

SDLTan abuseof powerI continue to be concerned about the operation ofstamp duty land tax, and my concerns are serious.Theeffect of this insidious, indeed draconian legislation is torender worthless every disposition delivered atsettlement, and to deprive legitimate purchasers oftheir right to their own property for which they haveproperly paid, at least until the race to the registerscan be completed.

From a practical point of view it negates the EuropeanConvention on Human Rights, and the right toproperty in particular. Exasperated, and aware of thedifficulties encountered by the Law Society of Scotlandin dealing with this matter, I wrote to the former MPfor this area, complaining about the draconian practicaleffects of the legislation, and while I still await aresponse from him, I appreciate that as the new MPfor Bethnal Green and Bow he had other matters toattend to.

Mine is a small firm and as such I do not have thenumber of settlements that the larger firms have. Butgiven the difficulties I have experienced, theconveyancing risks are considerable.And they are notin my view resolved by extending the period of lettersof obligation, nor by requiring or calling on indemnitypolicies.

Equally I am not pleased at the forms I have receivedfrom the Inland Revenue asking for information“missing” or “incorrect” on the SDLT 1, when myphotocopy tells me that it is not missing.

The SDLT form is simply a data collection instrument,for the government to collect as much data as possibleon its own people. Far from making the people safer,the likely consequence, as highlighted elsewhere, is thatthis is a society “sleepwalking to disaster”. Certainly ifthe practical effect of its legislation is to deny peoplethe right to their own property then I would considerthis society neither fair nor enlightened.

Truth is important, and justice is part of it. If thegovernments of the day, particularly the allegedlyenlightened and democratic ones, do not realise that,are more concerned with their own truths to bemanipulated to their own ends, and legislate in adraconian manner such as with SDLT and the moneylaundering legislation, then the result will in practiceproduce lots of injustice for lots of people.

If those in positions of power wish to conceal thetruth, to indulge in judicial cover-ups, they will not builda fair, just and safe society, and for the future there willbe real problems ahead.

Raymond S Hislop,Hislop & Co, Glasgow

Join the Barbie-Q


hearsay

Two clubs better than threeReaders struggling with their handicapwill warm to this tale from the BrodieCup golf competition, a prestigiouschampionship which Tiger Woods hasnever won, partly on account of neverhaving entered.After 12 years of valiantbut fruitless endeavour the HennessyBowie team of Charles Hennessy andJim Peacock were finally triumphant thisyear.Amid the scenes of celebration itwas pointed out that the duo hademerged victorious despite thecompetition being for teams of three.

The third man in question was notOrson Welles but the renowned AlistairBonnington, who turned it into ahandicap event by getting bunkered in alengthy hearing at Dundee SheriffCourt. In true pundit fashion the boldAlistair had blithely predicted that thehearing would last “about 30 minutes”.However in a flash of insight thatHearsay would commend to othersporting stars, Mr Bonnington summedup:“Clearly golf teams do better when Ido not turn up.”

Losingtheirappeal

Ms Smillie may wish toconsider a true success inlegal viewing terms achievedby Mr Peter Shepherd,lawyer with the Aberdeenfirm of Aberdein Considine.Mr Shepherd achievedaudience figures and ratingsof which The People’s Court

could only dream when hemade a surprise appearanceon the popular ITV SaturdayShow for the benefit of hisunsuspecting daughter, whowas in the audience.Alongwith other members of hisfamily, Mr Shepherd helpedhis daughter win a numberof prizes by undertakingvarious challenges includingdressing up as soap stars. MrShepherd confessedafterwards to havingenjoyed the show but tofinding it more nerve-racking than appearing infront of a bad-temperedsheriff.

The great George BernardShaw once remarked thathe liked to quote himself asit added spice to hisconversation. Hearsay doesnot consider itself to be inthis elevated Shavianpantheon, but it isimpossible to resist recallingthe presciencedemonstrated in the Aprilissue of the diary.Discussing Carol Smillie’sreality daytime TV show,“The People’s Court”,Hearsay concluded withthe hope that theparticipants did not end upsharing Mark Twain’s

opinion on courting thepopular vote: “The peoplehave spoken… theb*****ds.” It seems thatthe people have spoken…or rather their deafeningbut eloquent silence hasspoken for them.Viewersare said to have deserted“The People’s Court” indroves with audiencesfalling by half over its sixweek run.The verdict onthe format, which aimed toresolve neighbourly andfamily disputes by puttingthe case to a jury of text-messaging viewers, must beone of not proven.

Sheriffsaren’tso bad

Giant toymaker Mattel has not yetadded ‘Plaintiff Barbie’, ‘Litigation Barbie’,or ‘Po-faced Corporate Barbie’ to itsrange of variations on the absurdlylong-legged and tight-waisted plasticdoll. However it may well considerdoing so as it prepares to take aCanadian grill restaurant chain called‘Barbie’s’ to the Canadian SupremeCourt for the heinous crime of havingthe same name as the voluptuousfigurine. Barbie’s restaurant owner SpiroChristopoulos has already beaten

Mattel in two battles in the lowercourts over an 11 year period, but thetoymaker will not take no for ananswer. Obviously it is worried that 10year old girls requesting aBarbie for Christmas willreceive, not a doll thatwill contribute tofuture eating disorders,but a huge portion ofsurf ‘n’turf with a sideorder of barbecuedribs and beans.

When Arthur Andersen, the formerBig 5 accounting firm employing85,000, was found guilty ofobstructing the course of the SEC’sEnron fraud investigation by

shredding documents, it went intomeltdown.Today it employs only 200people, mainly for the purposes ofrepresenting the firm legally andwinding up its once thriving business.

However the US Supreme Court hasjust overturned the guilty verdict onAndersen. Hearsay believes it speaksfor all in the professional servicesworld when it says: Oops.

YOU AREFREE TO GO


COMPLAINTS


Q:Yet another review?

A:Yes.The Society’s Registrar DavidCullen coined the expression“regulatory fatigue” last year. Bearingin mind:

■ last year’s investigation by theOffice of Fair Trading into theoperation of the Master Policy;

■ our participation in the ScottishExecutive research working partywhose remit is to seek an evidencebase for Scottish Clementi issues;

■ the fact that the Society hasacted on every one of therecommendations about the Societyin the Justice 1 Committee Reporton the Regulation of the ScottishLegal Profession published in 2002;and

■ the Society’s continued success inmodernising its complaints handling,

it is clear that the Society isundergoing a unique and constantperiod of critical external scrutiny.This consultation was expected – itwas requested in the Justice 1report. But the consultation alsorevisits areas where the Justice 1Committee was satisfied. Either thator there is confusion betweenservice and conduct complaints andhow they fit into the regulatory

responsibility which Parliament gavethe Society.

Q: Did the Society fail to meet itsundertakings or to make itsposition clear?

A: No.The Society has followedthrough on all of its undertakingssince the Justice 1 report andwelcomed the opportunities thereport brought for change that theSociety was keen to implement:

■ 90% of complaints are now dealtwith in nine months or less – anoutstanding achievement and thenew complaints system introduceda simpler process;

■ 50% lay involvement in allcomplaints committees – andindeed on a whole range of otherSociety committees;

■ the restructuring the Society hasimplemented since the Council ofthe Law Society of Scotland Act2003 means that there is a cleardivision between regulation andpolicy within the operation ofCouncil. Indeed, the operation ofCouncil would be almostunrecognisable to Council membersof five or six years ago;

■ the amount of resource investedin the Client Relations Office by the

Society over the last few years isunprecedented and a clearindication of how seriously we takeour role on behalf of the public andprofession in handling complaints.

We have continued to explain whatwe do, how and why and willcontinue to do so in respondingonce again to this consultation.Wehave sought continuedmodernisation and requestedfurther legislation to enable us todo so.

It is critical that those involved andaffected take the opportunity tohave their say on the profession’sfuture.

Q: Surely then the consultationgives the Society an opportunityto show its achievements andlook for further modernisation asit has promised to do?

A:Yes and no. It seems that ratherthan being judged on the reality ofour complaints handling in Scotlandand the high standards of the otherregulatory functions, we may bejudged on perception.Theachievements of Philip Yelland, MaryMcGowan and their team over thelast couple of years mean that wecan look civic Scotland in the eye

Compensating consumers and a few regulation realities

The Law Society of Scotland’s Chief Executive,DOUGLAS MILL, looks at the background to theScottish Executive consultation “Reforming complaintshandling, Building consumer confidence: Regulation ofthe Legal Profession in Scotland”, some of the issues itraises and its potential long-term implications

COMPLAININGWITH CONFIDENCE


COMPLAINTSand challenge any assertion that weare doing anything other than a verygood job under intense scrutinyfrom those who regulate and co-regulate with us.

It is estimated that 0.01% ofsolicitors’ work in Scotland leads toa complaint. Only some complaintsare upheld.The Ombudsmanreceives complaints on 9% of thecomplaints the Society handles andfinds some varying degrees of faultin around half of those.The issues ofkey importance are keeping trueperspective and avoiding change forits own sake.We are in a situationwhere we must either stand up forthe benefits of our co-regulatorysystem or request that it isdecommissioned.

The four options the consultationgives for the future show, for me, alack of understanding of thestandards and the value of thecurrent system or the dedicationand commitment upon which itrelies.The current system withfurther improvements is apparentlynot an option.This is a sad reflectionon the political process.

Council is developing its response,

but if we are going to be judged onperception then perhaps the soonerwe move towards promotingoption D (a separate complaintsbody), the better for the Societyand the profession.The problem isthat the consultation is unclearwhether it is to be a separatecomplaints body for servicecomplaints and compensation, or forservice and conduct complaints, orfor all regulatory functions fromadmission to professional indemnity,and practising certificates toprosecution of members formisconduct.

Q: Is it that radical?

A:Yes, this consultation, whetherintended or not, goes to the heartof professionalism, practice and therole of the Society.

There is no informed analysis of thecomplaints handling position inScotland by any of the other partieswith an interest.We are happy tolook at evidence – hard, factualevidence, sustainable in a court oflaw. Unfortunately the process incivic Scotland seems to define“evidence” as opinions, howeverjustified or not, based occasionally

OPTION A“Enhancing the status quo”.The Ombudsman would haveadditional powers asrecommended by the Justice 1Committee, without her officebecoming a “single gateway”.TheOmbudsman would be able to:

■ investigate the Society’s decisionon a complaint, and not just itshandling of it;

■ enforce her recommendations;

■ conduct general audits of theSociety’s complaints files (legislationwould overcome currentobjections based on clientconfidentiality);

■ prescribe, after consultation,general timescales for resolutionof complaints, and ensure theywere met;

■ direct the Society to investigatea complaint.

Executive comment: There arebenefits in a familiar structure, but“the complaints handling systemneeds to be more independent, andseen to be independent; and… agreater degree of oversight is neededto increase public confidence”.

Gateway optionsThe Justice 1 Committeefavoured creating a “singlegateway” – an independent bodyto receive all complaints aboutthe legal profession and referthem to the professional bodyfor settlement, with the optionof a referral back if thecomplainant remaineddissatisfied.The consultationpaper comments:

“The Executive agrees that anarrangement like this could bebeneficial and that the gatewayfunction would sit well with theexisting functions of” theOmbudsman’s office. It couldreassure the public by providingan independent sift andassessment.

The gateway principle could work

in one of three ways:

OPTION BThe Ombudsman’s office wouldbecome a “single gateway withoversight functions”.That is, itwould receive all complaints aboutlegal practitioners which have notbeen resolved directly with theclient, and determine whether theyshould be investigated, with powersto require a response from theindividual, firm or the Society, directinvestigations, and monitorperformance. Estimated additionalcosts are a modest £100,000 ayear, from public funds, forresources for the Ombudsman’soffice.

Executive comment: It “seesattractions” in such a gateway,which with the proposed additional

THE FOUR MODELSThe consultation paper suggests four possible models “which might improve the waycomplaints are handled”.The following descriptions are taken from the paper, withindications of the Executive’s views where these appear from the text – Editor.

We are in a situation where we musteither stand up for the benefits of ourco-regulatory system or request thatit is decommissioned

on history or experience of otherjurisdictions. It is sad that a numberof organisations have damaged theSociety and the profession so badly.The job which faces the Societynow is to displace invalid, biased andself-serving perception.

Q: So what is the Society doingabout this?

A:We have formed a Modernisationof Regulation working party.Thiscomprises the three Office Bearers,three Council members (WalterSemple from Glasgow, CameronRitchie from the fiscals’ office, andJohn MacKinnon from Fraserburgh),three members of the Society’sExecutive (myself, Philip Yelland theDirector of Client Relations, andMichael Clancy the Director of LawReform). In addition to this ourHead of Media Relations (GillianMeighan) will be a permanentadviser.The committee is meetingregularly to draft the response andco-ordinate communications withthe Client Relations Office.

A meeting of some of our big firmswas due to take place on 15 June,using the model which workedsuccessfully in agreeing our

requirements for multi-nationalpractice.

All Deans of Faculty and Councilmembers have been sent a copy ofthe consultation, and the regulationsection of the website onwww.lawscot.org.uk is kept updatedso that anyone who is interestedcan contribute to the responseprocess.

The issues have been discussed at anumber of recent faculty meetings –with particularly good debates inGreenock and Ayr.

The delay in publication of theconsultation allowed us to discussthe issues at Council over anumber of months, and May’sCouncil meeting saw one of thefinest debates it has been mypleasure to witness in the last 12years. Some general policyindications given will allow theworking party to draft an optionspaper. Council will look at the drafton 1 July and agree the finalresponse at its meeting on 15 Julyin time for the 3 August deadline.

During that period of time we willconsult stakeholders including the

staff and the lay members of ourvarious client relations committees.This must be an exhaustive andinclusive process. It is important thatall Scottish solicitors in all areas andsectors are enfranchised, becausewe must consider our approach toco-regulation for the first time in anumber of years.

I would encourage individualsolicitors, faculties, firms, committeemembers and other associations torespond directly within thetimescale to the Scottish Executiveas well as contributing to theSociety’s response. Often, thosewith negative views speak first,which is why it is important thatnon-solicitors and solicitors whohave a more positive andconstructive view are also heard. Iwant to convey the force of feelingwhich I detected in visits roundScotland over the last six months toour political masters.

Q: But what does this really meanfor the average Scottish solicitor?

A:The increasing divergencebetween big firms and small firmsand the growth of in-houseemployment means that there may


powers for the Ombudsman (seeoption A) “might be an appropriateadjustment of self-regulation” in thelight of the Justice 1recommendations and the reformsalready implemented in response.

OPTION CThe option B model plussubstantive complaints handlingfunctions.The Ombudsman’s officewould become an investigatorybody handling most complaintsitself. Broadly speaking it woulddeal with IPS complaints and refercomplaints about conduct to theSociety.A model is the NewSouth Wales Legal ServicesCommissioner’s office.

Funding would come partly fromthe Society and Faculty, throughthe “substantial savings” fromhandling fewer complaintsthemselves, and partly from a levyon firms against whom acomplaint is upheld: the “polluterpays” principle.This differs fromthe Justice 1 Committee, whichthought the taxpayer should fundthe independent element of thesystem.The Executive estimatesthe cost as the combination of the

Society’s current CRO budget of£1.7 million and theOmbudsman’s £0.3 million –possibly optimistic given the extentto which the Society relies onvolunteer help.

Executive comment: Nothingadditional, specific to option C.

OPTION DA full-blown independentcomplaints-handling body,managed by a board with a laychair and lay majority to ensureindependence.This would operatemuch as option C, referringalleged professional misconduct tothe Society, and be funded in thesame way, but with the additionalcost of the board. It would, thepaper states without elaboration,“oversee prefessional indemnityand compensation fundarrangements operated by theprofessional bodies”.

Executive comment: “In supportof this option it can be argued thatconsumer expectations havedeveloped to the extent that thiswould be the only way to ensurepublic confidence in the system forhandling complaints.”


COMPLAINTS

not be an average solicitor, and thepotential impact will differ acrossthe profession. Ultimately, if theSociety were to lose or give upcomplaints handling, then anexternal body would be created. Iam absolutely convinced that evento perform exactly the samefunctions as the Society, its costswould escalate enormously and it isclear that whatever the process, theprofession will pay the bill for a lessefficient system.

So much of what we do relies onthe profession’s and lay people’sgoodwill and commitment to aprocess they believe works in theinterests of the public. Our £1.7million spend on complaintshandling this year is only part ofthe picture.The true cost ofcomplaints handling is much higher.

If committee members andreporters were paid the cost oftheir time, then I think operating ona prudent basis, the actual cost ofcomplaints would be a minimum of£3 million per annum.Thatexcludes set-up, general runningand support costs.

I do not see any quango – and itwould be a quango – being asefficient as the Society. Indeed, allexperience of other examples offunctions carried out by suchbodies would indicate a doublingor trebling of the costs. I doubtwhether the profession inScotland – because taxpayer inputis doubtful here – can reallysustain a complaints system whichcould easily cost £10 million perannum. It would undo the workto simplify and speed up the

process and risk being anti-competitive by pricing qualifiedlegal services out of themarketplace.

In addition to the increased cost,the system could move towards“polluter pays” – in other words,like the FSA, you pay for yourcomplaints, regardless. I do not seethe introduction of a system offinancial penalties for vexatious orunjustified complaints.The currentsystem is to use the politicaljargon “free at point of delivery”.In other words, it is a no-riskexercise even for the mostunjustified or malicious complaint;and let’s be robust enough toadmit that they exist.They costsolicitors and the Societysubstantial sums in time, moneyand business reputation.

“Polluter pays” bites in the highstreet because that is wherecomplaints come from.The type ofwork in family and business disputesin the civil courts, and property,brings the most complaints by itsvery nature.

The commercial client base of ourtop firms rarely complains toDrumsheugh Gardens; the clientsresolve the complaints or goelsewhere. Service complaints – andthat is what we are talking about –come from individuals interactingwith the legal system, often for thefirst time.

Philip Yelland and his team lead acommittee system with equal layand professional input with greatconsideration (perhaps too much attimes) within a robust and fairsystem for handling complaints. I findit hard to see any alternative asrobust, impartial and effective, andfear that a consumer-drivencompensation claims system coulddevelop which could damage theviability of a number of high streetfirms and compromise clients’interests.

Q: Isn’t that a good reason forthe Society, the public whoparticipate in the system and theprofession to show the benefitsof the current co-regulatorysystem?

A:Yes, and rest assured thatCouncil will provide the leadershipand resource which I believe theprofession demands.We willchallenge the Scottish Executiveand the Scottish Parliament whohave regulatory power over theSociety to operate within theparameters set by Mr McConnell,namely, evidence-based legislationand Scottish solutions for Scottishissues. If perception rules theconsultation, then our challenge tothe Scottish Executive must be toestablish an independentcomplaints-handling body which isas good as the current one. Thiswould be better done now in theinterests of the public and theprofession, rather than by slowlystrangling the existing system yearon year by compromise and cuts.

What I ask of Journal readers isengagement, an understanding ofthe issues and participation in theresponse as well as any legislativeproposals that follow. MichaelClancy and myself are the mainSociety contacts for the consultationand can be contacted with yourviews or if you would likeinformation.

Even to perform exactly thesame functions as the Society,the costs of an external bodywould escalate enormously


The attack on the compositionand operation of the JudicialAppointments Board by AlastairBonnington affords us theopportunity to explain how andwhy the Board operates as it does.

The role of the BoardThe then Justice Minister made itclear in announcing the creation ofthe Board in 2001 that he wasseeking to reform a system ofjudicial appointment which waswidely viewed as lacking intransparency and perceived equity.In establishing an independent JABwith a lay chair and 50% lay:legalsplit, the Executive was not onlyaddressing the perceivedweaknesses of the old system butalso demonstrating itscommitment to greater opennessin the way all public appointmentsare made – the Nolan principles.The Board, it was made clear,should be committed first andforemost to appointment onmerit, but also to transparency andfairness and the need to recruit ajudiciary which was asrepresentative as possible ofsociety.“Merit” for the Board’spurposes has effectively been

defined by the list of competenciesfor judicial candidates provided bythe Judicial Studies Committee.

Why lay members?Why did the Executive put laymembers on the Board? First, itsaid, to ensure that the candidatesappointed by the Board were intouch with the whole community,and seen to be so. Next, to instilpublic confidence in the newprocedure, since they detected areal public concern that a Boarddominated by lawyers might notbe sufficiently well-balanced.Thirdly,to assist the legal members of theBoard in assessing the “non-legal”competencies expected of judges:integrity, honesty, intellectualcapacity and sound judgment,management skills, communicationskills, and ability to deal withpeople fairly and courteously. Inthe Executive’s eyes it did notrequire a legal training to assessthese skills. Indeed, laypersons withwide experience in public andbusiness life, including modernselection methods, were thoughtto provide a valuable complementto the knowledge and experienceof the legal members of the

Board. So it has proved. Moreover,in Sir Neil McIntosh the Board hasan excellent chair, ideally fit forpurpose.A man of vast experiencein local government, in particular inthe fields of personnel andrecruitment, his wise counsel andquiet diplomacy have harnessedeffectively and harmoniously thetalents of all Board members.

How has the Board operated? The Board was committed fromthe start to identifying andadopting best practice in the fieldof recruitment.Accordingly, it drewon debates in other jurisdictionsand the thinking of the EqualOpportunities Commission, theCommission for Racial Equality andthe Office of the Commissionerfor Public Appointments. Fromthese it was clear that allcandidates must be considered onthe same basis and that thehardest task facing the Board wasto establish a system which wouldelicit adequate, reliable andverifiable information on everycandidate coming before us.Primarily, we rely on detailed,competency based applicationforms and interviews.The Board,after careful deliberation haseschewed the use of soundings (asopposed to references) fromlawyers and judges. First, weconsider that taking soundings isunfair in equal opportunitiesterms. It favours those with thebest connections. It is for thisreason that the English LawSociety withdrew from taking partin soundings for English judicialappointments several years ago.Similarly, the Commissioners forJudicial Appointments in Englandand Wales have been critical of theuse of soundings because of theinstances of prejudice and equal

opportunities bias which they havefound in scrutinising the operationof the system in practice there.Secondly, soundings can elevatewhat may be little more thanhearsay or gossip to the level ofknowledge.Thirdly, to resort tosecret soundings would be torecreate the potential for theperceived weaknesses of the oldappointment system, behind afaçade of greater transparency andopenness.The Board has preferredinstead to rely on the measuredcomments of referees nominatedby the candidates. Nevertheless,the Board continues to keep itsprocedures under review andmonitors evolving ideas of bestpractice in other jurisdictions.

One last point. In his article AlistairBonnington asserts that there iswidespread disquiet in theprofession about the calibre ofmany of the Board’s selections.Wedo not believe this is true. Notonly do the legal members of theBoard have to be satisfied with thelegal experience of everyrecommended candidate, so toodoes the Lord President.Moreover, a majority of the Boardmeet with members of theprofession constantly and hadthere been such widespreaddisquiet we would surely haveheard of it.We understand thatAlistair Bonnington has sinceindicated that he was critical ofonly a very few appointments.Wewill not quarrel with this amendedposition.The Board is not infallibleand indeed welcomes allconstructive criticism.

Lord MacLean is a retiring legalmember and ProfessorAlan Paterson is a lay member ofthe Judicial AppointmentsBoard for Scotland

THE JAB: HOW IT WORKS

LORD MACLEAN and Professor ALAN PATERSON reply to AlastairBonnington’s Opinion article in last month’s Journal

JUDICIAL APPOINTMENTS


MISSIVES

QUICK DEALSBuying in to

For the Queen, 1992 was her“annus horribilis”. For thoseattempting to reform conveyancingpractice, it was not a good yeareither. More senior readers mayrecall the Law Society of Scotland’sdoomed attempt to introducestandard missive conditions forresidential property transactions.Yet13 years later, the concept seems tobe catching on. Last monthEdinburgh became the third Scottishcity to promote a locally-agreed setof standard terms on which it ishoped the great majority (perhaps80%) of deals can conclude, andinterest is reported from severalother parts of the country.Why theturnaround?

“The 1992 style was so neutral inan attempt to suit both purchaserand seller that it ended upsatisfying no one”, says ProfessorStewart Brymer, the immediatepast Convener of the Society’sConveyancing Committee. Otherspoint to uncertainty over whether“core” clauses in the style couldvalidly be varied; and a simple dislikeof having anything imposed from onhigh. Brymer, a partner in Thorntons,Dundee, the firm behind the formof offer now widely used in that city,is firmly of the view that the newstyle is the way forward:“I haveused it myself on a number ofoccasions and it has worked verywell indeed.”

The Dundee approach is to have astandard offer printed for eachtransaction, to which individual firmshave begun developing their ownqualifications.The Inverness-basedFaculty of Solicitors of theHighlands, which can claim to havepioneered the first successfulcommon scheme, has nowregistered the third version of its“Standard Conditions of Sale”

(Deed of Declaration dated 16and 21 and registered BCS 22March 2005), intended to

represent the position thatparties might

expect to

reach at the stage of concludingmissives. By adopting the registeredconditions, the offer letter can belimited to a single page setting outthe parties, property, price, entry,particular items included in the saleand the time for acceptance.

“The object of the exercise whenwe drafted the Highland StandardClauses was to produce a standardset of conditions which wouldreflect the interests of both thepurchaser and seller fairly so thatwe would start at the point whichone usually reaches after anexchange of two or three missives”,explains Bruce Merchant of SouthForrest, who led a workshop on thesubject at the Society’s annualconference this year.“If thetransaction is entirelystraightforward the seller may beable to accept the offer without anyqualifications at all.”

The reluctant clientSuch a statement may inducenostalgia in those who practised inthe 60s and 70s, before missivesgrew to their present epicproportions. But increasinglycommon today is the failure toconclude, not through haggling overthe small print, but deliberate stallingby one side for ulterior motivessuch as completing anothertransaction.

Supporters of standard conditionsagree that their adoption will not byitself eliminate this issue. But RossMacKay of Henderson BoydJackson, another ConveyancingCommittee member and one of theworking party behind the Edinburghmissives, points out that they can stillbe of use in getting the problem outin the open.

“If a solicitor is deliberatelydelaying the conclusion of missives,they are already in breach of theSociety’s guidelines. If you areseeking to delay, you must disclosethe reason why.” Indeed he goesfurther, asserting that in thebroader picture solicitors have a

duty to the system as well as theirclients. “If the current practice suitsone client in 10 but prejudicesnine, it isn’t to their overallbenefit”, he maintains. “Standardmissives can only be to everyone’sbenefit. If solicitors are scared ofthem, you have to ask, why?”

Supporters of standard missives areclear that they are acting in defenceof the Scottish house purchasesystem, especially given the activeinterest currently being taken by theExecutive, whose solutions may notbe those preferred by theprofession. Marjorie Townsend, Headof Residential Property at Lindsays,Edinburgh, and a longstandingchampion of a rapid missivessystem, maintains that the systembecomes “dishonest” if solicitorswill not conclude a purchase untiltheir client’s sale is completed orfunding is assured, when the offermakes no mention of any suchconditions. She considers that thetrend towards late conclusion willresult in a system not just akin toEnglish practice, but worse than it.

“The essentials of the Scottishsystem are that when you put anoffer in it means what it says, andthe seller takes the property off themarket relying on the strength ofthat offer.That doesn’t happen inEngland of course – they keepmarketing until contracts areexchanged. In Scotland you take itoff the market and then you have aperiod of – it’s getting ridiculous atthe moment – sometimes six toeight weeks without a commitment,and that’s uncertainty and worryand financial hardship for sellers. It’sreally quite unacceptable.You’ve gotthe worst aspect of the Englishsystem but it’s even worse becauseyou’re not allowed to market yourproperty.”

Having promoted her own firm’srapid system for some years, withsupport from a limited number ofother Edinburgh firms, she firmlybelieves that clients themselves aredemanding reform.“I think the


Standard missives, a failure when first attempted in the 1990s, are suddenly gaining popularity in significant areas of the country.PETER NICHOLSON talked to some of thosewith a mission to make them work


MISSIVESbiggest impetus for change has beendisgruntled unhappy clients.TheSociety must be dealing withhundreds of complaints with regardto missives.” Since writing a numberof press articles on the subject, shesays, she has had “tons of newbusiness, tons of enquiries about it,people phoning up and saying welike the idea of this”. If a quick dealresults with a like-minded firm,“theclients are absolutely over themoon.They love it and it’s a greatmarketing edge for our firms”.

Designed by committeeScotland, Bruce Merchant told theconference workshop, is one of thefew countries in Europe not tohave its own standard conditions ofsale. Despite that, Scottish solicitorsare notoriously reluctant to give uptheir own tried and trusted officestyles. So how did each of the localinitiatives come to win favour? Acommon factor seems to havebeen a core of firms taking the leadand making the resulting agreedversion freely available to othersinterested.

In Inverness, four firms put heads

together to come up with the initialdraft, and then took it to theHighland Faculty, who adopted it.Two further versions have been putin place in the 10 years since, butBruce Merchant points out thateach firm must still be alert tointervening changes in the law.“Thelast revision by a drafting committeetook some months. It was thenadopted by the Faculty and madeavailable to all firms in the area.”

The Dundee experience was moreakin to that led by Lindsays inEdinburgh, with the Thorntons styleof offer coming to be adopted byothers. However the newlyregistered Edinburgh deed was amore ambitious undertaking. RossMacKay and PSM’s Pauline Peddie,the Edinburgh members on theConveyancing Committee, weretasked by the Committee withorganising something that wouldcommand general approval. Havingconvened a meeting of 15 or 16practitioners representing aspectrum of the 100-plus Edinburghfirms, all of whom bought into theidea, a working group of five wasformed which decided to adopt the

Inverness option. (The resulting offerletter is shown in the panel.)

Over four or five months, and“umpteen meetings”, says MacKay,draft clauses emerged which wereput to the full group, redrafted,circulated again, sent out for widercomment and finally registered(Deed of Declaration by GeorgeBarrie Clark and others, dated 13and registered BCS 15 April 2005:05/12836), before being formallylaunched through a letter to allEdinburgh firms.“We also held anopen meeting to which 35 otherfirms came, and again there wasconsensus that this was the wayforward.”

Within a couple of weeks of thelaunch, he estimated that 12-15firms were actively using the style,with others saying they would “assoon as they get organised”. On theacid test of whether it is speedingup the process of conclusion, hebelieves anecdotally that it is,“tremendously”.“We thoughtEdinburgh would be a hard nut tocrack”, he adds,“so if it takes offhere, it can happen anywhere.”

Taking practice forwardIt goes without saying that in orderto agree a common standard,compromises will be necessary, butproponents of the schemes believethere is nothing to be gained fromdrafting something loaded in favourof your client if that will inevitablyattract a qualification slanted theother way.The Edinburgh workingparty took the process one stepfurther and decided to “takepractice forward” on certaincommon areas of contention –guarantee paperwork, centralheating and, most radically, planningand building consents, which undertheir scheme only require to beexhibited for “recent” alterations(those completed within 10 yearsof the date of entry). Presumablybased on the likely attitude of thelocal authority to enforcement, itsuggests another reason why locally

developed conditions have a betterchance of securing generalacceptance than any attempt at aScotland-wide set, for the presentat least.

Marjorie Townsend admits to areservation over the buildingconsent clause; nevertheless shewould favour supporting whichevermodel becomes the standard.“Butwe would like to claim ownership ofthe original idea, which has takenmany many years to catch on!”

Notably, the form of offer adoptingthe Edinburgh standard conditionsincludes a “subject to surveyclause”, as has become normalpractice in the capital andelsewhere.Townsend is clear thatthis does not detract from theprinciple of early conclusion.“When you make an offer subjectto survey the matter is resolvedwithin a day, two days at the most;that is not why transactions arefalling through. Somewhere alongthe line the Executive, orsomeone, tied the two together,but it’s really quite separate.”

She believes that solicitors have anobligation to explain to their clientsthat missives can be concludedquickly under the Scottish system,and try and negotiate a long entrydate if they have a property to sell.“We have to get back to that, orelse we have a system where theoffer is subject to a sale, tomortgage finance and the seller isallowed to keep marketing, which iswhat they have in England.That’s theother choice. But I think the publicprefer speed and certainty.”

Still work to be done“And results”, she adds, dismissingthe argument that if you make themissive simple and straightforward,solicitors won’t be needed andhaving complicated missives justifiestheir fees.“You’re still going to needa lawyer to deal with the excessivelycomplicated security side and tosteer the whole thing through. Onthe estate agency side we need to

A seller faced with a choice between asimple offer adopting a commonscheme and a complex home-grownone, may for that reason alone betempted to go with the former

be a lot more proactive and gearedup as well.”

Bruce Merchant is similarlydismissive of such objections. If non-solicitors want to try and use themissives, let them, he asserts.And heis careful to point out that theHighland clauses are “a facility andnot a straitjacket”, a phrase echoedby the drafters of the Edinburghscheme: there will be properties forwhich the conditions are unsuitable(plots of ground, rural orcommercial properties), and there isno restriction on varying orqualifying the terms – in contrastwith the Society’s 1992 model.

The freedom to vary does notundermine the scheme, saysMerchant, but brings intransparency in that it is easy tosee what departures from thescheme are proposed, as only thevariations are in the offer itself. Andas Ross MacKay points out, at aclosing date a seller faced with achoice between a simple offeradopting a common scheme and acomplex home-grown one, may forthat reason alone be tempted togo with the former. Adopting acommon standard could even be aprotection against a professionalnegligence claim, a point made atthe conference workshop.

And interest in the concept isspreading. Since his workshop,Bruce Merchant has had requestsfor further information fromsolicitors in three other areas ofScotland. Ross MacKay has dealtwith enquiries from Perth,Dumfries, Kilmarnock and Ayr.Working parties have been formedin Aberdeen and Glasgow.“Wechallenged them to look at whatothers have done and to dosomething better!” says Merchant.

On speaking terms againHe continues:“It may seem strangeto encourage a multiplicity ofdifferent standard conditions on ageographical basis. However, I amsatisfied that in the first instance thisis the best way of getting theconcept of standard conditionsacross. Solicitors are much morelikely to use a document of whichthey have ‘ownership’ if they havebeen involved in the drafting.Atsome future time it may well bepossible to achieve standardisationthroughout Scotland, whether byreconciling the differences in thevarious styles or simply becausesome particular style becomespredominant.”

For some, the profession could evenrediscover itself. A spinoff from theEdinburgh steering group, says RossMacKay, is a proposal to form a localconveyancing group, or forum,which in the absence of a localEdinburgh faculty would be theplace for allowing debate with aview to reaching a consensus onissues such as the seller’s survey.“Asconveyancing systems becameautomated, we had got out of thehabit of face to face meetings. Butthose in the groups have certainlybenefited from the discussions.”


PUBLIC PROPERTYThe preamble to the registered Edinburgh and Lothians StandardClauses (adopted from the Highland version) includes this narrative:

“And we declare that any party desiring to use the [clauses] shall be atliberty to do so and to add to and alter and vary the same in any contractas they may wish;And we further declare for the information of any partyusing the [clauses] that the style of offer annexed and signed as relativehereto is intended for use along with the [clauses] but that it is at theentire discretion of each party to decide whether to use the same or anyvariation thereof”.

This is the style of offer referred to in the declaration:

Our Ref: ________________________________________________

Your Ref: ________________________________________________

Fax: ________________________________________________

Date: ________________________________________________

Dear Sirs

For the purposes of this offer and the Edinburgh and Lothians Standard Clauses (2005 Edition) aftermentioned:

The Purchaser means ______________________________ residing at _____________________________________________

The Property means ______________________________________________________________________________________

The Price is ____________________________________________ POUNDS STERLING (£___________________________).

The Date of Entry shall be ____________________________________________ or such other date as may be mutually agreed.

The Purchaser hereby offers to purchase from your client (hereinafter referred to as “the Seller”) the Property at the Price and

upon the conditions contained in the Edinburgh and Lothians Standard Clauses (2005 Edition) specified in the Deed of

Declaration by ____________________________ dated __________________________ and registered in the Books of Council

and Session for preservation on _____________________________________ 2005, and upon the following further conditions:-

(One) The Price shall include:

(a) the moveables specified in the Seller’s sales particulars

(b) the following additional items (if any):

(Two) This offer unless earlier withdrawn is open for verbal acceptance by 5pm today with written acceptance reaching us

no later than 5pm on the fifth working day following this offer and if not so accepted shall be deemed to be

withdrawn.

(Three) This offer and any contract to follow hereon are entirely conditional upon (a) a satisfactory survey report and (b) a

satisfactory valuation report being obtained by the Purchaser in respect of the Property. The Purchaser and his

lenders shall be the sole judges as to what constitutes satisfactory reports.

Yours faithfully


CLEMENTI

It was interesting to attend the talkby Sir David Clementi in April co-hosted by the Society of LegalScholars and the WS Society. Forme, it was particularly interesting tohear the questions from thepractitioners in the audience, whichalmost exclusively concentrated onSir David’s proposal for a newtrading structure called legaldisciplinary practices (LDPs).Attendees were keen to hear hisviews on the effect of itsintroduction in England and Walesin terms of Scottish firms’competitiveness in the UK market.

The Clementi Report has alreadygenerated a number of articles inthe Journal. Douglas Mill in “The Pullof the South” (February 2005, atpage 18) points out that “Thewhole question of professional

regulation and business models isnot something which is just left tothe Executive or the Office Bearers.It is a matter for Council and indeedthe whole profession to becomeinvolved in.”

For that reason and given thecurrent level of interest in tradingstructures, this article looks at thefindings of my recent research intothe change of structure to limitedliability partnership in the context ofClementi. Hopefully this will help toinform the debate on any proposedreforms in a practical way.

Research into LLP conversionAt the time of writing, 23 firms inScotland have converted to LLPstatus.All were asked to contributeto the research by completing ashort questionnaire.This looked at a

FACTOR

Sir David Clementi attracted a keen audience at his recent visit to Edinburgh.FIONA WESTWOOD assesses the mood there, and the pressures forchange in Scotland similar to his report for England and Wales

CONVERSIONThe

new Legal Services Board – forexample, a “fit to own” test, signinga code of professional practice, andrules to preserve clientconfidentiality.

The importance of changeAll of my reading of the situationdown south tells me that hisproposal will happen, in one formor another.The introduction ofLDPs will indeed put Scottish firmsat a competitive disadvantage vis-à-vis the UK market.Attracting andmore particularly retaining goodfinancial, marketing and HR peopleis an essential part of businesssuccess for professional firms.

“The challenge for existingmanagement will be to move awayfrom the temptation to bemoantheir fate and protest their moralsuperiority; and move towards theposition where they will haveaccess to the resources, skills andattitudes needed to competeopenly” (Simon Young, “Clementiand Alternative”, Managing forSuccess, January 2005, page 15).

The profession in Scotland needs torespond to the challenge Clementiis setting the UK legal profession. Iwould argue that change is neededif we are to thrive commercially andprofessionally.

“If certain lawyers continue to rejectthe notion that they are in business,such complaints will continue untilthey are indeed out of business”(Review of the Regulatory Frameworkfor Legal Services in England andWales 2004, page 5).

Fiona Westwood runs her ownmanagement and trainingconsultancy, specialising in workingwith the professional sector. Hersecond book, Accelerated BestPractice – Implementing Success inProfessional Firms, has just beenpublished by Palgrave Macmillan. Formore information see her website,www.westwood-associates.com. She isalso a senior lecturer in legal practiceat Glasgow Graduate School of Law.

that option in the long term, but felta less radical proposal would beeasier to introduce in the firstinstance.

It is worth noting that thesequestions came from goodprofessionals seeking to improve therange and quality of their services totheir clients.They were not seeking“commercialisation” over and abovetheir professional responsibilities.

Clementi’s argumentsThe original drivers for a newtrading structure were outlined inthe July 2003 Report by theDepartment of ConstitutionalAffairs.These included to:

■ provide an opportunity for newinvestment sources and innovation,

■ achieve improved efficiency, and

■ lower costs.

For Clementi, the main aim of theintroduction of LDPs is to improvethe overall quality of business


number of factors, including thedrivers behind their conversion,advantages, disadvantages, timescalesand overall effect. Eleven (48%)replies were received, ranging fromlarge commercial practices to smallout-of-town firms.

All had found the conversion easyto achieve.Timescales varied fromsix to 18 months, with mostachieving it within one year.

The main reason for changing toLLP status was to limit liability. Otherreasons included to achieve:

■ tax advantages,

■ a corporate structure,

■ a more flexible structure,

■ improved recruitment, and

■ more modern methods ofsecuring debt.

All reported that clients’ responseto the conversion was positive. LawSociety of Scotland support wasprompt and practical. Some lenderswere unreceptive and would notcontinue panel appointments.Additional paperwork included newclient engagement letters, obtainingrelease of personal guarantees fromlenders and banks, and meeting theexternal accounting reportingrequirements. External professionaladvice was usually sought onaccountancy and tax matters andwas not always found to be wellinformed.

Final comments included:“It hasbeen a worthwhile move for us.Culturally little has changed.Thebusiness is judged on the strength ofour balance sheet and not thepersonal solvency of the partners!We found no client hostility at all.”

Roger Mackenzie in his Journalarticle “Take a Deep Breath”(October 2004, page 20) had alsofound few problems with theconversion, commenting that “thereare continuing signs that in time LLPwill become the conventional modelfor legal firms”.

Change is possible – andnecessary To me, this research highlights thatchange is possible.Alteration oftrading structure is relatively easyand quick to achieve, provided firmsare clear about what they want toachieve and why.

Anyone familiar with my writing willrecognise my interest in the linksbetween trading structure, managingchange and business success. Myoriginal research into professionalfirms in 1997-98 highlighted the

Boyd Napier LLPThe article “Take a Deep Breath” in our October 2004 issuecontained certain statements relating to the reasons for theliquidation of Boyd Napier LLP.These were intended as expressionsof opinion only and were not based on full knowledge of thecircumstances.We regret any implication to the contrary and arehappy to clarify that the report of the liquidator to creditors doesnot reflect the statements made.

A change of structure... offers thechance to tackle underlying problemsand access new skills, energy andresources, both of which are needed tooperate in today’s marketplace

importance of matching structure tostrategy.To be successful,professional organisations mustensure that their operating structurefacilitates the making andimplementation of decisions, makesefficient use of resources, assists thedelivery of high quality clientservices and provides the skill basenecessary to operate effectively.

Important as it is to get the rightstructure, achieving a change ofstructure offers the opportunity todo more than that. It offers thechance to tackle underlyingproblems and access new skills,energy and resources, both of whichare needed to operate in today’smarketplace.

Many firms have pushed out theboundaries of the currentlyallowable trading structures byintroducing management boards,rewarding non-lawyer managers andconverting to LLPs. Some now feelthese limitations are too restrictiveto allow them to source third partyfunding, recruit and retain youngprofessionals and fully compensatepeople other than practisingsolicitors.

Clementi echoes these sentiments,arguing that “Access to justicerequires not only that the legaladvice given is sound, but also thepresence of the business skillsnecessary to provide a cost-effectiveservice in a consumer-friendly way”

services.As a result, he is seeking togive the opportunity of ownership(and long term recognition of theircontribution) to other professionalpeople, such as finance, marketingand HR directors.

He recognises the argumentsagainst people other than lawyersowning legal service firms as theymay put external pressures onprofessionalism and confidentiality.There exists the remote risk thatthird party ownership might resultin law firms being controlled bymoney launderers and/or criminals.As result, he proposes safeguardsto ensure that non-lawyer ownersare brought within the remit of the

(Review of the Regulatory Frameworkfor Legal Services in England andWales 2004, page 5).

What did the meeting ask?As mentioned above, the questionsput to Sir David concentrated onhis proposed new structure. Inparticular, he was asked directlywhether the introduction of LDPswould put the profession inScotland at a competitivedisadvantage if it did not have thatchoice. His answer, albeit measuredand cautious, was “yes”. He was alsoasked why he had not gone furtherand suggested MDPs. His responseindicated that he had not ruled out


MENTAL HEALTH ACT

The Mental Health (Care andTreatment) (Scotland) Act 2003 willintroduce sweeping changes to thelaw relating to the compulsorytreatment of persons with mentaldisorder.The Act was initiallyscheduled to come into force in Aprilthis year, but recent indications fromthe Executive suggest thatimplementation is now likely to be inOctober.

The new Act is the first significantreview of mental health law inScotland since the Mental Health(Scotland) Acts of 1960 and 1984.Indeed the 1984 Act was notextensively debated in Parliament, andmany of the provisions in that Act canbe traced back to proposals made in

the 1950s. In many ways, the new Actcan be seen as the first majorphilosophical review of Scots law onmental health for over 40 years.

This article aims to give practitionersa brief guide to the main provisionsof the Act in so far as they relate tothe compulsory detention andtreatment of persons with a mentaldisorder who have not beenconvicted of a criminal offence.TheAct also gives detailed provisions fordealing with convicted persons with amental disorder, but that is beyondthe scope of this article.

The new civil framework:“principles”The Scottish Executive in its report

New Directions: Report on the review ofthe Mental Health (Scotland) Act 1984(SE/2001/56) recommended that“principles” should be fundamentalthe new Act: “In our discussions andconsultation, we have foundwidespread acceptance that principlesshould underpin mental health law,and broad agreement as to thenature of these principles” (chapter 3,paragraph 5).

The principles are now enshrined insection 1 of the new Act.Theapproach will be familiar topractitioners who use the Adultswith Incapacity (Scotland) Act 2000where similar provisions apply. Anyperson using the provisions of the2003 Act (including decisions to take

Alan Bayleyis a partner inStodarts, Hamiltone: [email protected]

A better wayCARE

The new Mental Health Act, shortly to come into force, reflects the mostfundamental change in thinking about care of mental health patients for over40 years.ALAN BAYLEY outlines the background and the principal changes

to


no action or to discharge from theAct), must take account of theprinciples, which have regard to –

(a) present and past wishes andfeelings of the patient;

(b) views of certain specifiedpersons;

(c) the importance of the patientparticipating as fully as possible;

(d) the importance of providinginformation and support to thepatient;

(e) the range of options available inany case;

(f) the importance of providingmaximum benefit to the patient;

(g) non-discrimination – patients tobe treated no less favourablythan non-patients (unlessjustified in the circumstances);

(h) respect for diversity – thepatient’s abilities, backgroundand characteristics, including,without prejudice to thatgenerality, the patient’s age,sex, sexual orientation, religiouspersuasion, racial origin, culturaland linguistic background andmembership of any ethnic group.

Any person using the provisions ofthe Act must also consider thewelfare of any child under the ageof 18 with a mental disorder asparamount (section 2), and mustrespect equal opportunitieslegislation (section 3).

The Mental Health TribunalOne of the main changes thatpractitioners will encounter is theintroduction of the new MentalHealth Tribunal.The tribunal,broadly speaking, replaces thepresent role of the sheriff inmental health hearings. It seems tobe desirable to move hearingsrelating to long-term detentionand conditions for communityresidence to a tribunal, rather thandealing with them in a forumwhich could be seen to“criminalise” patients. In NewDirections the Scottish Executivefound after consultation that: “Thegeneral impression gained fromthe interviews was that manypatients find the prospect ofattending court to be anintimidating one and are too ill totake part” (annex 7, paragraph 31).

However, some caution is required.Similar tribunals have operated inEngland and Wales for some time,and their operation has not beenentirely without problems. It isunderstood that proceedings haveoften been protracted, and verycontentious. It is to be hoped thatthe new Scots system ensures a fair,but speedy resolution to cases.

Schedule 2 to the Act sets out howthe new tribunals are to becomposed. Each tribunal will bemade up of three members:

■ a legal member;

■ a medical member (withqualifications, training andexperience in the diagnosis andtreatment of mental disorder); and

■ a general member (withappropriate qualifications, training,skills and experience).

Mental disorder: a definitionTo fall within the scope of the Act, aperson must have a “mentaldisorder”.This is defined in section328 as including:

■ Mental illness – this coverspsychiatric disorders such as

schizophrenia, and also disorders ofmood. It also covers dementia anddisorders resulting from brain injury.

■ Learning disability – this coverspeople with autistic disorders andreplaces terms like “mentalhandicap” and “mental impairment”.

■ Personality disorder – the termincludes disorders classified asparanoid, schizoid, dissocial,emotionally unstable, histrionic,obsessive-compulsive etc.

The inclusion of the last category –“personality disorder” – may beseen as controversial. About 10%of the general population has apersonality disorder, and the extentto which these disorders can betreated remains a matter ofprofessional debate. Professor JJMcManus and Dr Lindsay Thomsonin Mental Health and Scots Law inPractice comment:

“The term remains controversialand can be viewed as vague andpejorative...There is not a specifictreatment for personality disorderbut clinicians may attempt to treatindividual components of thedisorder, for example by the use of


MENTAL HEALTH ACTanger management in dissocialpersonality disorder. Suchtreatments are dependent on thewillingness of an individual to co-operate and will be prolonged.”

The compulsorytreatment provisions1. EMERGENCY DETENTION

Section 36 of the Act states that adoctor has power to grant anemergency detention certificaterequiring the patient to bedetained in hospital for up to 72hours.This is to determine whatmedical treatment is to beprovided for the patient.

The Act sets out detailed rules forthis but broadly speaking, the criteriaare that the doctor must be satisfiedthat the patient has a mentaldisorder; that it is necessary as amatter of urgency to detain thepatient in hospital; and there issignificant risk to either the patientor any other person.

2. SHORT TERM DETENTION

Section 44 allows an “approvedmedical practitioner” (i.e. apsychiatrist) to grant a short termdetention certificate orderingcompulsory detention in hospital forup to 28 days.Again there aredetailed rules set out in the Act, butgenerally the patient must have amental disorder; it must benecessary to detain the person toassess or give medical treatment;and there must be risk to thepatient or a third party.There is aright to apply to the tribunal forrevocation of a short termdetention certificate.

3. COMPULSORYTREATMENT ORDERS

Part 7 of the Act allows forcompulsory treatment orders(“CTOs”) to be imposed on apatient.This part of the Actrepresents a considerable departurefrom the existing system for long-term treatment of those withmental disorders.The provisions ofthis part are detailed and willrequire careful consideration by allusers of the new regime.Theremainder of this article attempts tosummarise some of the mainelements of the new system.

The application (section 57)Under section 57, it is providedthat the application for a CTO isto be made by a mental healthofficer (“MHO”).The MHO willgenerally be a suitably qualifiedsocial worker.Two medical

It is understood that tribunalproceedings in England and Waleshave often been protracted, and verycontentious. It is to be hoped that thenew Scots system ensures a fair, butspeedy resolution to cases

practitioners require to carry outexaminations. Generally two“approved medical practitioners”(i.e. psychiatrists) are required,although the patient’s GP canprovide one of the reports.

The medical practitioners require tobe satisfied that:

■ the patient has a mental disorder;

■ medical treatment would be likelyto prevent the mental disorderworsening or to alleviate any of thesymptoms, or effects, of thedisorder;

■ without treatment there issignificant risk to the patient or athird party;

■ because of the disorder thepatient’s ability to make decisionsabout the provision of such medicaltreatment is significantly impaired;

■ the CTO is necessary.

The application (section 63)The application is then made bythe MHO to the new tribunal.Thedocuments to be lodged with theapplication are the doctors’reports, the report preparedunder section 61 and theproposed care plan preparedunder section 62.

Powers of the tribunal (section 64)Under section 64 the tribunal mustafford a wide variety of persons theopportunity of makingrepresentations (orally or in writing)and of leading or producingevidence.There are 10 categories ofperson who have this right and thelist includes the patient; the patient’snamed person; any guardian of thepatient; and the welfare attorney ofthe patient. Commendably thepatient’s primary carer is alsoincluded in the list.

The proposed care plan (section 62)Under sections 61 and 62 theMHO requires to prepare a reportand proposed care plan in respectof the patient. In preparing theproposed care plan there areduties to consult with a range ofcare professionals and the doctorswho prepared the section 57reports. Amongst other things theplan is to cover:

■ the needs of the patient;

■ the medical treatment that it isproposed be given;

■ the care services which it isproposed that the patient isprovided with;

■ the measures under section 66(1)(see below) which it is proposedthe CTO should authorise, with fulldetails of how those measures areto be provided;

■ the objectives of the treatment,the services and the measures thatare recommended.

Compulsory treatment orders areto be made by the new tribunal.Like the sheriff under the existingsystem, the tribunal has the powerto order long-term detention inhospital.The most radical part ofthe Act relates the orders which thetribunal may make.These are listedin section 66(1) and include:

■ authorising the detention of thepatient in a specified hospital;

■ the giving to the patient ofmedical treatment;

■ the imposition of a requirementon the patient to attend onspecified dates or at specifiedintervals at specified places either toreceive medical treatment orcommunity care or other relevantservices;

■ the imposition of a requirementon the patient to reside at aspecified place;

■ requirements to allow certainpersons (e.g. the MHO, doctors, careprofessionals) to visit the patient;

■ the imposition of duties on thepatient to advise on proposedchanges of address.

It will be noted that the orders arenot restricted to treatment inhospital.This reflects a change inclinical (and probably political)thinking about the most appropriateway to treat people with a mentaldisorder. In New Directions theScottish Executive commented:“trends suggest that fewer peopleare being detained in hospital forlengthy periods, but there are, andmay well continue to be, a risingnumber of people who live in thecommunity most of the time, butmay require compulsory measuresof care in crisis situations.Thispattern has a number ofimplications for mental health law...The possibility of treating people,even when acutely unwell, in thecommunity, raises the issue ofwhether the link betweencompulsory care and detention inhospital is still appropriate.”

The new Act does indeed breakthat link.The new community-basedCTOs recognise that long-termdetention in hospital may not bethe best way of treating andmanaging some patients.

Review of CTOs(Chapter 4)The initial CTO is to be for a periodof six months and is thereaftercapable of being extended by thepatient’s responsible medical officerfor prescribed periods.The CTOmust be reviewed by the tribunalevery two years, or if theresponsible medical officerrecommends any variations to careor treatment of the patient.

If the responsible medical officer isnot satisfied that the criteriarequired under the Act for the CTOstill apply, then he shall make adetermination revoking the CTO.

Appropriate careThe Act represents a radical changeto Scots law concerning thecompulsory treatment of those withmental disorders.The move towardshearings before a tribunal ratherthan the sheriff court will, it ishoped, remove some of theperceived stigma under the currentsystem. Compulsory treatmentoutwith hospital, whilst clearly asensitive issue, is also to bewelcomed. Current medical thinkingis that compulsory treatment withinhospital is not the most appropriateform of care for many patients.

SEPTEMBER2/3 Management Conference – Eddleston, Peebles (13 Management)

6 Identification of Evidence – Glasgow (6)7 Annual Employment Law Conference – Glasgow (6)

15 Manual Books/Accounts Rules for Sole Practitioner – Edinburgh (7.5 Management)16 Windfarms – Stirling (3)20 Tenancies – Glasgow (2.5)21 Stress Recognition & Management Workshop – Edinburgh (3.75 Management)22 Stress Recognition & Management Workshop – Edinburgh (3.75 Management)22 Licensing Law – Glasgow (6)27 Private Client Conference – Dundee (6)28 Sport and the Law – Glasgow (6)28 Negotiation Skills – Edinburgh (8 Management)29 Negotiation Skills – Glasgow (8 Management)30 Personal Injury Conference – Edinburgh (6)tbc The White Paper on Planning – Edinburgh (2)

Remember the Commonwealth Law Conference is taking place in London from 11-15 September.For further information see www.commonwealthlaw2005.com

OCTOBER4 nothing.but.the.net – Glasgow (6)5 Practice Management – Planning and Profitability – Glasgow (7)6 Practice Management – Planning and Profitability – Edinburgh (7)6 Agricultural Law Conference – Edinburgh (6)

10 Understanding Business Finance – Edinburgh (8 Management)13 Understanding Business Finance – Glasgow (8 Management)24 Money Laundering Forum for MLROs – Edinburgh (6)26 Tax Law Conference – Stirling (6)

28/29 Legal Aid Conference – Glasgow (11)

NOVEMBER4/5 Practice Management Course for New Principals – Edinburgh (11 Management)

8 Time Management – Glasgow (3.5 Management)9 Time Management – Edinburgh (3.5 Management)

10 Civil Partnerships – Edinburgh (6)15 General Practitioner Conference – Dunblane (6)

18/19 Advocacy Skills in the Sheriff Court – Cardrona, Peebles (12 Management)26 Surviving as a Sole Practitioner – Glasgow (7 Management)29 Contract Law – Edinburgh (6)30 Money Laundering Forum for MLROs – Glasgow (6)tbc Wills Conferencetbc Property Litigation Conferencetbc Conveyancing Conferencetbc Adults with Incapacity/Mental Healthtbc HR for Lawyers

DECEMBER1 Personal Selling Skills – Edinburgh (3.5 Management)

FORTHCOMING EVENTS(CPD Hours in Brackets)

For further informationin connection with our seminars,please contact Update at the undernoted address:Update, The Law Society of Scotland, 26 Drumsheugh Gardens, Edinburgh EH3 7YRLegal Post, LP1, Edinburgh 1Telephone: 0131 226 7411 Fax: 0131 476 8118 Email: [email protected]

professional practice

For many firms, the Table of Feespublished each year by the LawSociety of Scotland used to providea very helpful guide to setting feesthat were, hopefully, fair to both theclient and also to the firm. Itswithdrawal by the Council earlierthis year means that many firms will,perhaps for the first time, have tolook carefully at the cost of runningtheir business and calculate forthemselves the hourly rates theyshould be charging.

Some firms used to find the table ofless value because their fees were

basically determined by the market– there are going rates, for examplein conveyancing, over which theyhave little control, and which theyhave to quote if they are to keepthe business. Even in thesecircumstances it can still be useful towork out periodically what hourlyrate the lawyers in your firm shouldbe aiming to achieve.

Calculating expense rates has thepotential to be hugely complicated.This article outlines an approachbased broadly on the Cost of TimeSurvey.This methodology was

originally set out in a bookletproduced by the Law Society ofScotland several years ago – “TheCost of Time”, which is also set outin the Fees Supplement to theScottish Law Directory.

Let us assume a firm with fourequity partners and another threefee earners – two solicitors and atrainee.

Its financial year runs to 31 March,and the partners have prepared abudget for the year to 31 March2006.The easy part was salaries,which are reviewed annually on 1

April.They have taken a view onthe salaries to be paid over thecoming year, and these aresummarised in table 1 for feeearners and their secretaries, andtable 2 for support staff.

Table 3 shows the overall budget,which comprises these three salarytotals, adds employers’ nationalinsurance, and adds the totalexpected level of overheads.Theseare forecast at £225,000.

The Cost of Time methodologytakes these projected costs andmakes an allowance for a number

The Society’s Table of Fees is formally withdrawn from 1 July.ANDREW OTTERBURN and HEATHER STEWART offer some adviceon calculating hourly fees without the Table

The Journal: June 200530: www.journalonline.co.uk

Cashier 20,000Reception 17,000Juniors 2 x £12,000 24,000

61,000

YEAR TO 31ST MARCH 2006SALARIES: CENTRAL SUPPORT STAFF

Table 2

Name Position Fee earner salary Secretary salary

John Partner 18,000Debbie Partner 18,000Jan Partner 18,000Richard Partner 18,000Michael Solicitor 30,000 18,000Linda Solicitor 28,000 9,000Anthony Trainee 13,000 9,000

71,000 108,000

YEAR TO 31ST MARCH 2006SALARIES: FEE EARNERS AND SECRETARIES

Table 1

FEESIN ATABLE-FREE WORLD


this month ››CONTENTSFees: how to charge

without the Table 30

Risk management:

the terms of

engagement letter33

IT: videoconferencing

facilities in court 36

of other items:

■ An allowance for a “notional salary”to be earned by each of the partners– something approaching a marketrate for a partner in their role of a feeearner. In this case a figure of £55,000has been used.This is included so as toinclude a “cost” for each partner in thecalculation.

■ In this example the firm pays acommercial rent for its offices.However in many cases the partnersown their offices and often do not paythemselves rent.Where this is the casea notional rent should be included,once again so as to reflect the truecost of running the practice.

■ The four partners have £230,000capital tied up in the firm, in effect aninterest free loan. In the recent Cost ofTime report interest was calculated at4%, and that is what has been includedhere, although you could simply applythe rate you would be charged byyour bank.

■ Finally, an allowance is made forpartner pension provision, and theCost of Time uses a figure of 17 1/2%.

Table 4 considers each level of feeearner and takes a view on the totalhours likely to be chargeable. Ideallythis would be based on time records,although in this case, because these areunreliable, we have used the figuresassumed in last year’s Cost of TimeSurvey published by the Law Societyof Scotland.These assume, forexample, that a partner will only bill1,000 hours a year (or around 4 1/2hours a day), even though they may be

in the office from 9.00am to 6.00pm –nine hours. Much of their time will bespent on management of the firm oron supervising other staff, ormarketing. One thousand two hundredhours is assumed for other fee earnersand 800 for trainees.

It is of course preferable for all feeearners to record their time – boththeir chargeable and non-chargeabletime – even where they are workingon a fixed fee basis and do not billaccording to time spent.Time

recording is a wonderful discipline formore effective time management, and,although often unpopular, is afundamental management tool. It is thekey to understanding how much amatter has cost.The table indicatesthat (hopefully) we will record and beable to charge clients forapproximately 7,200 hours of work.

Finally, table 5 illustrates an expenserate for each level of fee earner. Ittakes the salary of each fee earner andallocates overheads and other salary

Fee earner salaries 71,000Secretary salaries 108,000Cash room, reception, junior 61,000

240,000NIC (say, 10%) 24,000

264,000Overheads 225,000Total 489,000

Table 3

Name Position Chargeable hours

John Partner 1,000Debbie Partner 1,000Jan Partner 1,000Richard Partner 1,000Michael Solicitor 1,200Linda Solicitor 1,200Anthony Trainee 800

7,200

YEAR TO 31ST MARCH 2006TIME BUDGET

Table 4

YEAR TO 31ST MARCH 2006BUDGET


professional practice

costs across the fee earners.

In this example the total ofoverheads, secretaries, central staffand the other expenses allowed forin the calculation amounted to£465,700.Table 6 shows how thistotal was calculated. It is for you todecide how to allocate them –there is no right or wrong way.Thisfirm has tried to spread it accordingto seniority, with half shared equallyand the other half allocated pro ratato the fee earners’ salaries.

If you manage to sell the 7,200hours at the expense rates in table5, you should produce a total feeincome of £757,000 and anincome for each of the partners of£55,000. Arguably they could earnthat by working for someone else,so an income of £55,000 providesno additional reward for the risksof running a business.You shouldaim therefore to set rates higherthan this to generate a morereasonable profit.

Having calculated an hourly rate, thefinal stage is to apply that to theparticular matter and arrive at a fee.The old Table of Fees cited sevenfactors that should be taken intoconsideration, and in our view thesestill hold good:

■ the importance of the matter tothe client;

■ the amount or value of anymoney or property involved;

■ the complexity of the matter, orthe difficulty or novelty of thequestion raised;

■ the skill, labour, specialisedknowledge and responsibilityinvolved;

■ the time expended;

■ the length, number andimportance of any documents orother papers prepared and perused;

■ the place where and thecircumstances in which the serviceswere rendered.

It is for each firm to decide what ismost appropriate for it. Howeverour advice would be that it isextremely useful to know theminimum average fees your firmneeds to charge for different levelsof staff. As competition increases itwill become ever more important.

In April the President of theSociety wrote to all firms invitingthem to participate in the 2005Cost of Time survey.This willprovide historic data on the costbase of the profession.Participation is free and carries athree hour CPD credit as well asan individual report on cost ratesin the firm and a copy of thesurvey report.The individualreport calculates all these figuresfor you. In recent years there hasalso been a prize draw. Completedquestionnaires must be returnedby the end of August.

Name Position Fee earner & Overheads Overheads Total Hours Expensenotional salary per salary per capita rate

John Partner 55,000 44,009 33,264 132,274 1,000 132.27Debbie Partner 55,000 44,009 33,264 132,274 1,000 132.27Jan Partner 55,000 44,009 33,264 132,274 1,000 132.27Richard Partner 55,000 44,009 33,264 132,274 1,000 132.27Michael Solicitor 30,000 24,005 33,264 87,269 1,200 72.72Linda Solicitor 28,000 22,405 33,264 83,669 1,200 69.72Anthony Trainee 13,000 10,402 33,264 56,667 800 70.83Total 291,000 232,850 232,850 756,700 7,200

YEAR TO 31ST MARCH 2006INDIVIDUAL EXPENSE RATES

Table 5

Andrew Otterburn is a management consultant and for many years hasrun practice management seminars on behalf of the Society. He hashelped in the development of the Cost of Time Survey since 1999,working initially with Professor John McCutcheon and now with Dr JohnPollock. His book, Profitability and Law Firm Management, is publishedby the Law Society in London.

e: [email protected]

Dr Heather Stewart MBA is solicitor and management consultant. Herbook, Excellent Client Service – strategies for success, was alsopublished by the Law Society of England and Wales in February 2003.

e: [email protected]

Secretary salaries 108,000Cash room, reception, junior 61,000NIC 24,000Overheads (including rent) 225,000Notional rent 0Allowance for intereston partner capital £230,000 4% 9,200Partner pensionprovision 4@ £55,000 £220,000 17.5% 38,500

465,700Allocate 50% relative to salary 232,850Allocate 50% per capita 232,850

YEAR TO 31ST MARCH 2006TOTAL OVERHEADS AND NON-FEE EARNING SALARIES

Table 6

The Solicitors (Scotland) (ClientCommunication) Practice Rules2005, passed at the Society’s AnnualGeneral Meeting in March, make itcompulsory, with some exceptions,for solicitors to issue terms ofengagement to clients in all areas ofwork. Hitherto terms ofengagement have only required tobe issued in domestic conveyancingtransactions. Practices will no doubtwish to take the opportunity toreview their existing procedures toensure compliance with the newrules. However, when conductingthat review, it is also an opportunemoment to consider the riskmanagement points which theyshould seek to address in theirterms of engagement.This articlediscusses these risk managementpoints.The provisions of the PracticeRules themselves are outwith thescope of the article.

Identify your clientIn most cases the identity of theclient is self-evident. However,sometimes you will need to beexplicit for whom you are acting.For example, in a partnership

dispute, are you acting for thepartnership or one or more of thepartners? On occasions you needto be alive to the possibility thatthere may be an expectation, whichmay well be unreasonable, on thepart of other parties involved in atransaction, that you are acting forthem when you are not.

CASE STUDYThe minority shareholders of a limitedcompany intimated a claim againstsolicitors on the ground that thesolicitors had failed to protect theirinterests in relation to a companyreorganisation.The partner responsiblefor the transaction was quite clear inhis own mind that the firm wasalways acting only for the majorityshareholders.

In these situations, it may beadvisable to send a letter of non-engagement to those non-clients, tomake it clear that you are not actingfor them and thereby minimise therisk of having to defend a claim atthe instance of non-clients whoperceive that you have failed toprotect their interest.

In this month’s article RUSSELLLANG of Marsh considers the riskmanagement issues which shouldbe addressed by practices draftingor reviewing terms of engagement

engagedGET


risk management


professional practiceInstructionsIdentify the person(s) authorised togive you instructions.That isparticularly important if you areacting for a limited company, limitedliability partnership or partnership,but this issue also needs to beaddressed where you are acting formore than one client, such ashusband and wife or trustees.

CASE STUDYAB & Co acted for all the owners of atenement building in a dispute withbuilding contractors.The firmcommunicated with and tookinstructions from the factors for theproperty and reported to themregularly throughout the dispute butdid not communicate with the ownersat all. Later there was a complaintfrom some of the owners that AB &Co had not kept them fully informedof developments and in particularabout the level of costs alreadyincurred and likely to be incurred inthe future.AB & Co had assumed thatthe factors would report to the

owners.That assumption turned out tohave been misplaced when itemerged that the factors had beenexpecting the solicitors tocommunicate with the owners directly.

State how you will acceptinstructions from the client. Ifinstructions are accepted bytelephone, should you specify thatwritten confirmation of allinstructions given orally will berequired? Some practices do notaccept instructions by email. Anyrestrictions of this kind should beclearly stated in the terms ofengagement.

Scope of workMisunderstandings between solicitorand client as to the precise scope ofthe engagement are a frequentcause of claims and complaints.Consider the following case study:

CASE STUDYAB & Co acted for a client in thesubscription of shares in a company,which, it transpired had no assets.The

client alleged that the firm shouldhave advised him not to invest in thecompany.The firm denied they wereinstructed to give the clientcommercial advice but were onlyadvising on the terms of thesubscription agreement.

The scope of the work you are tocarry out for the client should beset out in the terms of engagement.Of equal importance, but oftenoverlooked, you need to set outclearly any exclusions, limitations orqualifications.The misunderstandingillustrated in the case study couldhave been avoided if it had beenclearly stated at the outset of thetransaction that commercial adviceand commercial corporate financeadvice in particular were excludedfrom the engagement.

Be careful that you do not say onething and do another. For example,you may routinely exclude taxadvice in your terms of engagement.However, you may be acting forclients in matters which have taximplications, such as drafting orrevising tax warranties andindemnities in a share sale andpurchase transaction, propertytransactions where there may beVAT issues, or drafting a will wherethere may be IHT considerations. Inthese circumstances, you may haveto amend your “no tax advice”clause to make that clear that youwill be drafting or revisingdocumentation in reliance oninformation and advice given by theclient’s tax advisers.

Timescales Some solicitors say nothing in theirterms of engagement abouttimescales.They argue that it isimpossible to give a timescale. Howlong is a piece of string? Such anapproach misses the opportunity tomanage the client’s expectations.From a risk management point ofview, one reason terms ofengagement are important is toavoid claims and complaints bymanaging clients’ expectations andreducing the scope formisunderstandings. Perceived oralleged delays are a frequent causeof claims and complaints evenwhere there is no actual delay onthe part of the solicitor. Rememberthat clients often have their own(often misguided) notion abouthow long a piece of legal workshould take – and this is oftenlinked to other actions which they

intend to take and which they failto mention to you. Even if youcannot state how long a matter willtake, say so and keep the clientinformed as the matter progresses.Make it clear to the client that heshould not take any action in othermatters dependent on theoutcome of the matter withoutspecific reference to you.

CASE STUDYMr A alleges that he lost a lot ofmoney when he had to cancel hiswedding reception and honeymoonbecause of his solicitor’s alleged delayin finalising his divorce.A’s solicitors’explanation is that the divorce actionhad taken no longer than normal.


Furthermore, the solicitors could notunderstand why A had gone aheadand committed himself to weddingplans without contacting them toascertain when the extract decree ofdivorce might be issued.

No guaranteed outcomeClients are bound to have an ideaof what it is they want to achieve ininstructing you to carry out a pieceof work – tax mitigation, forexample. It may or may not coincidewith your own perception of theposition. Indeed on occasion theresult the client wants may not beachievable. In order to manageexpectations, ascertain the client’sobjectives, and consider reflecting

these in the terms of engagement.Where appropriate, make it clearthat the outcome is not guaranteed.

Who will be handling the workTell the client who will be handlinghis work, who to contact if thatperson is unavailable and the nameof the supervising partner(if different).

Client’s responsibilities The client should be made aware ofwhat is expected of him, forexample the need to giveinformation and instructionspromptly when required, the needto be available to executedocuments, and the need to remain

Russell Lang is formerly a solicitor in private practice who works in theFinPro (Financial and Professional Risks) Practice at Marsh, the world’sleading risk and insurance services firm. e: [email protected].

The information contained in this article provides only a general overviewof subjects covered, is not intended to be taken as advice regarding anyindividual situation and should not be relied upon as such. Insuredsshould consult their insurance and legal advisers regarding specificcoverage issues.

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

It is desirable that the client shouldbe asked to sign and return onecopy of the terms of engagementin order to prove, in the event of adispute, that the client hasreceived and accepted them

in contact, particularly if critical datesare to be met.

Fees and outlays Many disputes with clients aboutfees can be traced to poorengagement procedures.The feesand outlays to be charged or thebasis on which they are to becharged (including VAT), and thecircumstances in which thosecharges may vary, should be clearlydisclosed. Large bills, sometimesrendered at the end of a matter, orat a time when the client is notexpecting to be billed, can causeparticular problems. Billingarrangements clearly set out in theterms of engagement, including anyprovisions for deposits payable inadvance, interim fee notes andrecovery of outlays, can forestall thiskind of problem.

Complaints procedure Practices now have to appoint aclient relations partner – see theSolicitors (Scotland) (ClientRelations Partner) Practice Rules2005, passed at the Society’s AnnualGeneral Meeting, which came intoforce on 1 June 2005. Clients shouldknow how and to whom theyshould make a complaint ifdissatisfied.The procedure formaking complaints could be set outor referred to in the terms ofengagement.

Limitation of liabilityFollowing the example of otherprofessions, particularly accountants,some firms seek, in their terms ofengagement, to limit the practice’sliability. Practices which arestructured as limited liabilitypartnerships or limited companiesmay also seek, in their terms ofengagement, to have clientsacknowledge that any claim theymay have can only be pursuedagainst the practice entity itself,excluding any liability on the part ofindividual members or directors.

The legality, enforceability andeffectiveness of any clause purportingto exclude or limit liability arebeyond the scope of this article.

Termination of engagementSometimes difficulties can arise if theengagement is not terminated, as inthe following case study.

CASE STUDYAB & Co were acting for a client inpursuing an action of damages forpersonal injuries sustained in a roadtraffic accident. As the expiry of thetriennium approached, they found itimpossible to obtain instructionsfrom their client, who failed torespond to six letters they had senthim. Some weeks after the actionhad become time barred, theyreceived intimation of a claimagainst them from new solicitorsacting for the client.

In order to manage clients and theirexpectations better than in theabove case study, it would beadvisable to set out the client’sresponsibilities in the terms ofengagement and also state thecircumstances in which the solicitorswould be entitled to terminate theengagement, and follow this throughby sending the client a letter of dis-engagement.

Acceptance by client It is desirable that the client shouldbe asked to sign and return onecopy of the terms of engagementin order to prove, in the event of adispute, that the client has receivedand accepted them.There willinevitably be situations where thesigned copy of the terms ofengagement is not returnedpromptly, if at all. Should you carryout any work for the client beforeyou have received back the signedterms of engagement? This is foreach firm to decide.Whateverpolicy is decided, the client needsto be told so that there is nodoubt about the position.

The Scottish Court Service (SCS),as part of its ongoing commitmentto improve the efficiency andeffectiveness of court proceedingsby using new technology, is nearingcompletion of a project which willresult in the installation ofvideoconferencing equipment in atotal of 26 courtrooms.

The impetus for this current projectwas the coming into force ofvarious pieces of legislation.Specifically, the following mattersneeded to be considered:

■ providing live TV links betweenprisons and courts in terms of theCriminal Justice (Scotland) Act 2003;

■ developing audio-visual linksbetween courts and other locationsas required by the VulnerableWitnesses (Scotland) Act 2004;

■ establishing a service desk for theco-ordination of videoconferencingand live link facilities between EUmember states as provided for byEC Regulation 1206/2001.

In the course of investigating thesesubjects, it became clear that thedegree of overlap among them was

such that they could beconsidered as a single project.

Prison linksA pilot project wasconducted at GlasgowSheriff Court wherebyprisoners appearing for fullcommittal on petitionproceedings could do so byway of a videoconferencing link.The first use of the link wasmade on 13 October 2003when an inmate at BarlinniePrison “appeared” in courtfor a committal hearing.

Following the successful pilot,the scheme has been extendedto allow Barlinnie to link to thecourts at Hamilton,Airdrie andPaisley.The links are used daily.

Vulnerable witnessesThe Vulnerable Witnesses (Scotland)Act 2004 extended the definition of“vulnerable witness” far beyond thechild witness provisions which hadexisted in the Criminal Procedure(Scotland) Act 1995.The Act alsoprovides for witnesses giving

evidence from a location remotefrom the court (another court or asocial work office, for example).

The old CCTV equipment in use insome courts was restricted to usewithin the courthouse itself. It couldnot easily be modified to providefor evidence given from a remotelocation.The technology whichwould allow this type of remote

evidence is the samevideoconferencing standard whichwas used for the prison links. Itmade sense, therefore, to replacethe old CCTV equipment withvideoconferencing equipment.

EU requirementsEC Regulation 1206/2001 came intoforce on 1 January 2004 and


professional practiceIn March the Journal carried an article on the facilities provided forelectronic presentation of evidence in court. COLIN ARMSTRONGof Scottish Court Service now describes how videoconferencing isalso available for various purposes

Call up the WITNESS

full videoconferencing facilities inevery sheriff court is prohibitive.

Full facilities have been installed in atleast one court in every sheriffdom,and in the first instance, casesshould be transferred to thesecourts where possible. If the transfercannot take place, practitionersshould contact the SCS ElectronicService Delivery Unit (ESDU) todiscuss what alternative solutionsare available. Contact details aregiven at the end of this article.

In certain circumstances portablevideoconferencing units can betransported to distant courts andset up on an ad hoc basis, but itshould be borne in mind that theseunits do not provide the full facilitiesof judicial control or overviewcameras. Moreover, the specialprovision of these portable units islikely to incur additional cost to setup and operate.

ESDU has an ongoing commitmentto monitor usage ofvideoconferencing facilities ingeneral.The full impact of theVulnerable Witnesses Act isunknown at present, but operationalexperience will assist in determiningwhether the existing equipmentprovision requires to be adjusted.

Remote locationsThe equipment currently installedallows a witness in, say, Paisley SheriffCourt to give evidence in a HighCourt trial calling in Aberdeen.While this has obvious benefits for avulnerable witness in that they cantravel to a nearby court and alsoavoid all contact with the accused, itnevertheless requires the witness toattend at a courthouse.

A natural extension of thevulnerable witnesses provisionswould be to spare the witness thepossible distress of attending acourt altogether.To that end, theOperations and Policy Unit of SCShas recently appointed a projectmanager whose remit is to identifyand equip “remote” locations whichare not located in court buildings.

The intention is to have at least oneremote witness suite per sheriffdomby November 2005.The first suitehas been set up at the Office of thePublic Guardian in Falkirk andothers will follow in due course.

Benefits to practitionersWhile the need to installvideoconferencing equipment in

courts was principally driven bylegislative changes, there is noreason why the equipment cannotbe used for the taking of evidenceof any remote witness.

The equipment has already beenused in the Court of Session toallow the evidence of an expertwitness to be given from avideoconferencing suite inSingapore.The savings to thepursuer in that case ran to severalthousand pounds. It has also beenused in criminal cases to takeevidence of witnesses fromAustralia, the USA and Spain.Although the witnesses would nothave been classed as “vulnerable”,the inconvenience which wouldotherwise have been caused byrequiring their attendance inScotland would have beenconsiderable.

The equipment is available free ofcharge for use by any courtpractitioner (subject to theagreement of parties and approvalby the judge or sheriff) in any typeof case.The Court of Session RulesCouncil is currently considering theneed to draft rules to formalise theuse of the equipment, but in themeantime all applications areconsidered on their merits.

SCS staff will operate the in-courtequipment, but the arrangements tobe made at the remote end of thelink are a matter for parties. Ifadditional equipment is required tobe installed or located temporarilyin a court without suitable facilitiesbuilt in, there may be a chargeincurred to cover the cost ofinstallation and operation. Guidanceis available on the SCS website (seethe above link). Generally, it is bestto arrange a test of the equipmentfor the day before the case is dueto be heard, to ensure that it willfunction correctly and to allowparties an opportunity to familiarisethemselves with the facilities.


Contact usIf you need any furtherinformation about the availabilityand use of courtroomvideoconferencing equipment,please get in touch with anymember of the Scottish CourtService Electronic ServiceDelivery Unit (e: [email protected]; t: 0141 5594590; f: 0141 559 4585).

Again, the videoconferencingtechnology used for prison links canalso be used for links to other EUstates. It made sense, therefore, tocombine the requirements so thatmaximum effect was achieved forthe minimum outlay.

The current positionAs a result of the rationalisation ofthe various demands, facilities forvideoconferencing have beeninstalled in every location where theHigh Court sits and in many of thelarger sheriff court buildings.A fulllist of locations is available on theSCS website, http://www.scotcourts.gov.uk/resources/courtroomtech/courtroomtech.asp.

The standard installations consist offour flat-panel monitors each with acamera mounted above the screen,together with a videoconferencingunit and a main control unit, all ofwhich are situated in thecourtroom.A further screen andcamera are installed in a witnessroom within the courthouse andthis unit is, in turn, connected to asecond videoconferencing device.The judge (or sheriff) has control ofwhich cameras are activated at anyone time so that as the witness isaddressed by the judge and counselthey see the face of a single personin turn.The judge can alsoimmediately terminate theconnection at any time.

All the cameras and screens areconnected to the courts’ internalnetwork and can be interconnectedacross this to any court location inScotland which has the requiredequipment.There is also a gatewayfrom this network which allows

connections to be made out overthe telephone network, via ISDNlines, to any location in the worldwith suitable network connectionsand videoconferencing equipment.

This means that the court can takeevidence from the witness roomsituated within the building or fromany suitably equipped remotelocation. Likewise, the witness room

may be used to give evidence tothe local court or any remote court(either in Scotland or elsewhere).

When the in-court screens arenot being used to take theevidence of witnesses, they can beused as standard monitors for theplayback of video evidence etcusing the electronic presentationof evidence units in court – see“Taking a line, online”, in theMarch Journal at page 38.

At the same time as installing thevideoconferencing equipment, theopportunity was also taken toupgrade the general level ofcourtroom display equipment.Atsome locations,“hi-tech”courtrooms have been set up withadditional fixed viewing screens setinto the jury box, next to thewitness stand and for the accused.There is usually at least one largewall-mounted plasma screen toallow the public and practitioners inthe well of the court to viewimages or video.Those courts are,generally, in the areas of densestpopulation and accommodate alarge percentage of the cases beingdealt with by SCS.The number andlocation of screens will vary fromcourtroom to courtroom due tothe differing layouts.

Distant courtsThe installation of remote witnessfacilities is likely to be of morebenefit in distant courts which maynot deal with a high volume ofcases but where the inconveniencefactor is greatest.The possibleeffects of a disruptive journey on avulnerable witness cannot beignored, but the cost of providing

Full facilities have been installed in atleast one court in every sheriffdom, andin the first instance, cases should betransferred where possible

required SCS to establish a centralcontact point for dealing withrequests from member states totake the evidence of witnessesbased in other parts of the EU. Sixcourts (one per sheriffdom) weredesignated as locations to be usedfor videoconferencing andteleconferencing between EUmember states.


INBRIEF

SOCIETY

New office bearers take up roles

FCO FEES INCREASEThe Society has receivedintimation from the Foreign andCommonwealth OfficeLegalisation Office that the feefor legalisation of documents bythe FCO will increase to £19per document with effect from1 July 2005.

CORNTON VALE:NEW AGENTS’ RULESAs from 25 July 2005 solicitorswill be required to bookappointments for visiting clientsin custody at the Cornton ValePrison and Young OffendersInstitution.

Please telephone 01786 835334to arrange your visits or forinformation on visiting.Thebooking line times are: Mondayto Friday, 9.30am-12.45pm;1.45-5.30pm; 6.30-9.00pm; andSaturday and Sunday, 9.00am-2.00pm; 3.00pm-7.00pm.

REGISTER NOWFOR PRAGUERegistration is still available forthis year’s annual conference ofthe International Bar Association,to be held in Prague from 25-30September.

With over 3,000 internationallawyers expected to attend, theconference offers over 150working sessions covering allareas of practice and fourshowcase sessions focusing onissues of interest to lawyers ofall disciplines.The conferencenot only provides theopportunity to make contactsbut also to learn from some ofthe most acclaimed speakers inthe legal world.

Further details including theconference programme can beviewed at the websitewww.ibanet.org.

The Law Society of Scotland’s President and VicePresident for 2005-06, Caroline Flanagan andRuthven Gemmell, took up office at the Councilmeeting on 27 May.

Caroline Flanagan, a partner with Ross & Connel inDunfermline, joined Council in 1998 before going onto serve as convener of a number of committees,including Education & Training,Admissions and CivilProcedure.

After what must be the first presidential handover tohave been sealed with a kiss, Caroline in her firstaddress to Council said that there had been manysuccesses for the Society in the past year and shehad no doubt these would continue.

“I want to look at more efficient ways ofcommunicating with the profession in particular”,she added. “We must let them know what we aredoing both in our regulatory and ourrepresentative role.”

For the moment the focus is very much on theregulatory, with the consultation on complaintshandling.The Society would have to consider its

response very carefully, she said, as it wouldpotentially have very far-reaching implications.“It isdesperately important that all practitioners arefamiliar with the paper.”

Legal aid also looms large on the horizon. Councilhas established an Access to Justice Committeeunder Ian Smart, as well as the Legal Aid Committeenow convened by Oliver Adair in succession to MarkThorley, to share oversight of the subject.

Caroline thanked in advance all conveners, andordinary members, of the Council’s committees.“Theability of Council members to take on severaldifferent committees at one time is one of thestrengths of Council”, she said.

The Vice President, Ruthven Gemmell, is a partnerand Head of Asset Management at Murray BeithMurray, Edinburgh. He commented:“I’m lookingforward to the challenge of developing the goodwork done by Duncan Murray, the Society’s outgoingPresident. Caroline and I share a long-termcommitment to the Society and we’re bothanticipating a busy year.”


The long-awaited Executiveconsultation paper, “ReformingComplaints Handling”, waspublished on 11 May, with adeadline for responses of 3August.

The paper is covered more fully inthe lead feature in this issue, butthe main options for comment,in brief, are:

■ increasing the investigatory andenforcement powers of theOmbudsman;

■ making the office of theOmbudsman a “single gateway” toreceive and sift all complaints wherelocal resolution has not beenpossible, with wider powers tomonitor the complaints handlingprocesses of the professionalbodies;

■ turning the Ombudsman’s officeinto a single gateway which woulditself investigate most complaints;

■ creating a new independentcomplaints handling body, with aboard led by a lay chair and with alay majority.

The Justice 1 Committee report in2002 favoured retaining the currentsystem of self-regulation ofcomplaints handling by theprofessional bodies, but recomm-ended a number of measures tomake the system more accountable.The paper appears to lean towardscreating a “single gateway” forcomplaints (i.e. a more radicaloption than the first one above).

Council debated the paper at itsmeeting on 27 May and willconsider a draft response on 1 Julybefore holding a special meeting on15 July to agree its submissions.Allsolicitors are strongly encouraged toread the paper (available atwww.scotland.gov.uk/Publications/2005/05/09103027/30286) and tocommunicate their views.

Pictured are the five new members ofCouncil successful in this year’s elections.Along with co-opted member BruceBeveridge, Deputy Keeper of the Registers ofScotland, they attended their first meeting on27 May.They are: Farhat Adams, of A & RRobertson & Black, Blairgowrie (Perthconstituency); Christine McLintock,McGrigors (Edinburgh); Ranald Lindsay,Lindsay (Dumfries); Ian Gardiner,TheMcKinstry Co (Ayr); and David Newton,The PRG Group, Clydebank (Dumbarton).

New membersjoin Council

COMPLAINTS VIEWS NEEDED URGENTLYIn order to establish whetherthe civil legal aid reformsimplemented on 1 October2003 have resulted in a 21%increase in fees for solicitors,the Scottish Legal Aid Board, inconjunction with the Society, isconducting a costing analysis.

This will apply in relation to allcases where a solicitor hasreceived payment of a legal aid account where legal aid was grantedon or after 1 October 2003. Over the next few months the Boardintends to request files in a sample of those cases in order toestablish the actual difference between the solicitors’ fees pre- andpost- the reform.The Board will be concentrating on those casesthat have been paid under the block fee regime either by way of theundefended or defended block fee tables.

It is important to establish the actual increase in fees.Accordingly,the Society would encourage the profession to respond positively tothis request.

For further information please contact Stuart Drummond on0131 476 8147.

Did the legal aid rise deliver?

Farhat Adams Christine McLintock Ranald Lindsay

Ian Gardiner David Newton

Solicitors (Scotland)(Client Relations Partner Rules) 2005During May the Client Relations Partner Rules were issued to allpractitioners.The Rules came into effect on 1 June.

In terms of the Rules, all firms should notify the Client RelationsOffice of details of their client relations partner by 29June.This includes firms who have notified detailspreviously under the voluntary arrangement.

Any firm seeking a waiver in terms of rule 8 ofthe Rules, should send their application to PhilipYelland, the Director of the Client Relations Officeas soon as possible for consideration by the ClientCare Committee.


SOCIETY

Third partycomplaints procedureThe Client Relations Office hastaken on board concernsexpressed by the Legal DefenceUnion and others aboutpreserving the confidentiality ofclients in complaints initiatedby parties who are not theclients of the solicitorcomplained against.

Previously, the investigation wasconducted by full cross-copyingof information, with care beingexercised to ensure that noconfidential information wasdisclosed.The changed procedurewill involve the complainer beinginformed of the outcome andaction (if any) taken on thecomplaint, but they will notreceive copies of allinformation, including inparticular the reporter’s report.For further information,contact Mary McGowan on0131 476 8152 or [email protected].

New information packThe Society has producedan information packdesigned to give clearinformation to the public onthe role performed by theClient Relations Office.Anysolicitors wishing copiesshould contact our helpline

on 0845 113 0018.A corresponding informationleaflet for the profession iscurrently in the pipeline.

IPS compensation limitsOn 1 April 2005 the limit ofcompensation for inadequateprofessional services wasincreased to £5,000. Council hasdecided that this will apply tobusiness ongoing or transactedafter that date. For casesconcluded before 1 April theprevious maximum limit of£1,000 will apply. For furtherinformation on how the ClientRelations Office will apply thelimits please contact PhilipYelland on 0131 476 8131, [email protected].

Client Relations Office

The Society wants solicitors totake a pragmatic approach toresolving simple servicecomplaints where possible.

A firm of solicitors wasapproached by a client whowished to buy a new house.Theclient asked for specific details ofthe costs involved including thecost of obtaining a survey.Thesolicitors provided theinformation about fees andoutlays to be incurred andconfirmed that the cost of thesurvey would be £250 plus VAT.

The transaction duly concludedand the client received anaccount from the solicitor.Thecost of the survey on theaccount was £400 plus VAT.

The client contacted thesolicitors who, after somepersuasion by the complainer,contacted the surveyors todiscuss matters.As a result ofthat, a revised account for thesurvey was provided from thesurveyors for £260 plus VAT.Despite the complainer’scontinuing concern that thedirect quotation had still beenexceeded, the solicitors insistedon full payment of the sumclaimed by the surveyors.

The complaint was investigatedby the Society.At the end of theprocess, the Client RelationsCommittee considered that thecomplainer’s concerns wereentirely justified. In addition to a

small amount of compensationfor distress and inconvenience,the sanction imposed was thatthe solicitors were asked to payback to the client the sum of£10 plus VAT for the differencein the sum quoted and paid.

Lessons to be learnedIf a client asks for an estimate ofoutlays (for example, a survey),the solicitor should checkbefore confirming preciselywhat the outlay will be and notgive any undertaking onanother’s behalf.

If the outlay turns out to costmore than the original estimate,then the solicitor should raisethe issue with the appropriateperson, and if appropriate theclient, before the client raises acomplaint.

In choosing to defend thiscomplaint the solicitor spentmonths of time which couldhave been used on fee-chargingactivities and no doubt lost aclient.The cost to the professionof the Society handling thecomplaint would have equatedto at least the cost of apractising certificate for the sakeof £10 + VAT.

A pragmatic approach tocomplaints may not resolve theprinciples at stake but it can bethe best thing for your business.

Mary McGowan, Client RelationsOffice (0131 476 8152)

Recent Changes

CASE STUDY:Taking a pragmaticapproach to complaints


Her Majesty attended the StateOpening of Parliament on 17 May2005, and provided the usual addressto peers and MPs which sets out theGovernment’s programme for what isshaping up to be a bumper 18 monthsession of Parliament.

A total of 41 bills were announced andthere are a further seven draft billslurking around.

More than two-thirds of the bills in thelegislative programme will includeprovisions which will apply in Scotland.Some of the most significant bills are:

■ Company Law Reform

■ Consumer Credit

■ Immigration and Asylum

■ Regulation of Financial Services

■ ID Cards

■ Equality.

Company Law ReformThis bill is intended to keep theregulatory burden on business to aminimum, particularly for small andmedium sized enterprises. It originatedwith the independent Company LawReview and will focus on four mainareas:

■ improving and encouragingshareholder engagement in the long-term investment culture;

■ ensuring better regulation ofbusiness and a “think small first”approach;

■ making it easier to set up and run acompany; and

■ providing a level of flexibility forfuture business environment.

The bill is also likely to containprovisions to limit the liability onauditors and directors.

The company law white paper will notbe implemented by this bill – itsconsultation ran until 10 June 2005. Inthat context, the Society’s CompanyLaw Subcommittee has beenexamining the white paper and hadpoints to raise on the following issues:

■ who can be a director;

■ auditor liability and audit quality; and

■ removal of the requirement toappoint a company secretary.

Consumer CreditThis is a reintroduction of theConsumer Credit Bill which fell onthe dissolution of Parliament beforethe election.This bill will update theConsumer Credit Act 1974,particularly in relation to the licensingof consumer credit businesses, andwill provide regulators with moreproportionate enforcement powers.Controls on extortionate creditbargains will be enhanced, withconsumers being given better accessto dispute resolution, and thefinancial limit below which regulationcurrently applies will be removed sothat all consumer credit will beregulated to the same level.This billoriginated in the white paper “Fair,Clear and Competitive – theConsumer Credit Market in the 21stCentury”, which was published inDecember 2003.

The Society’s Consumer LawSubcommittee had little to say aboutthe actual terms of the bill, althoughsome aspects will require amendment,particularly those which give warrantpowers in Scotland to JPs rather thansheriffs.

Immigration and AsylumThe Immigration and Asylum Bill willseek to implement theGovernment’s five-year plan onasylum and immigration. Somefeatures of the bill include theintroduction of a “points system” formigrants and the use offingerprinting and biometrics forinclusion in travel documents.

Employers of illegal immigrants will besubjected to the use of civil penaltiesand there will be a reviewed appealssystem to accompany theintroduction of the points system forlegitimate migration.

Regulation of Financial ServicesThe Regulation of Financial Services(Land Transactions) Bill will extend the

FSA’s regulatory powers to coverhome reversion plans and Islamicbanking products.

ID CardsThe bill bringing in identity cards willbe reintroduced after being dropped atthe election and is likely to prove to besomewhat controversial in the Houseof Commons, particularly with thePrime Minister’s reduced majority.

A sub-group of the Society’s HumanRights, Privacy and Criminal LawCommittees is considering the bill andwill provide comment on the technicallegal aspects of this measure.

EqualityThis bill has also been reintroducedafter its fall at the dissolution of thelast Parliament.The principal aim ofthis measure is to create a singleequality and human rights body forthe United Kingdom.This body, to beknown as the Commission forEquality and Human Rights (CEHR),will replace the three existing equalitybodies – the Commission for RacialEquality, the Equal OpportunitiesCommission and the Disability RightsCommission.The CEHR will becharged with preventingdiscrimination on the grounds of age,religion and beliefs, and sexualorientation.

The bill will seek to introduce a“gender duty” on public authoritiesrequiring them to promote equality ofopportunity between men andwomen. The bill was due to have itssecond reading on 15 June 2005 andwill be examined by the Society’sHuman Rights Subcommittee.

A BUMPER PROGRAMMEMICHAEL CLANCY outlines the principal measures tolook out for in Westminster following the Queen’s Speech

If you want further informationabout any of these measures, orany other law reform issues, pleasedo not hesitate to contact MichaelClancy at the Society – telephone0131 476 8123 or [email protected].

Michael Clancy,Director, Parliamentary Liaison

The principalaim of thismeasure is tocreate a singleequality andhuman rightsbody for theUnitedKingdom


SOCIETYnothing.but.the.netnow bookingThe Society’s not-to-be missedannual IT conference is on its way –better than ever, promise theUpdate Department.

This year’s conference, the sixth, willbe held in the Glasgow RoyalConcert Hall on Tuesday 4 October2005.

The conference, this time round, hasbeen structured to provide somegeneric presentations which will beof interest to the profession as awhole, as well as two simultaneousstreams – stream A, covering legalIT issues on a diverse range oftopics, and stream B coveringpractical IT security issues.Theconference will also feature practicaldemonstrations on key securityissues such as firewalls and anti-virussoftware, and a debate on the prosand cons of radio frequencyidentification technology.

For only £109 + VAT, it counts forsix hours’ management CPD.Booking is available online atwww.lawscot.org.uk.

One of the best kent “men in black”,Willie Young, hung up hisrefereeing boots at the end of May when he took charge of his lastPremiership game.

The drama of the last day of the season somewhat overshadowedhis retirement from the game.Then again, it might be said that thebest refs always go unnoticed.

Commenting on his refereeing retirement after over 500 seniormatches,Willie Young said:“I’ve been lucky enough to have beeninvolved in top level football for 15 seasons. Over the years I’ve seengreat, and not so great, players come and go, but I’ll always be gratefulfor having had the opportunity to be involved in a sport I love. I evenmanaged to have an opportunity to send off Ally McCoist – playingfor Kilnockie in the film ‘A Shot At Glory’.”

He was on the FIFA List from 1992 until 2000, one of the highlightsbeing a game at Wembley between England and Brazil in May 1992.Members of the Tartan Army may be tempted to remind him thathe incorrectly disallowed a goal for offside that, had it stood, wouldhave won the game for Brazil.

He will now be able to spend more time with his colleagues atGlasgow firm Brechin Tindal Oatts, where he is managing partner.

OFF AFTER THE WHISTLEOBITUARIESGEORGE LAMBERTONTAYLOR, Edinburgh

On 20 March 2005, GeorgeLamberton Taylor, formerlypartner and latterly consultantof the firm Brodies, Edinburgh.AGE: 62ADMITTED: 1967

JOHN CHALMERS RENNIE(retired solicitor), Markinch

On 28 March 2005, JohnChalmers Rennie, formerlyemployee of GlenrothesDevelopment Corporation,Glenrothes.AGE: 63ADMITTED: 1968

JAMES HAMILTON GIBBMUIR, Bothwell

On 20 April 2005 JamesHamilton Gibb Muir, solepractitioner, Bothwell.AGE: 45ADMITTED: 1983


INBRIEFSTIRLING WINS LLBACCREDITATIONThe University of Stirling hasbeen accredited by the LawSociety of Scotland to providethe degree of LLB. Its coursewill be launched in autumn2005 by the Department ofAccounting, Finance and Law,which already offers the BA inlaw and the BA in business law.

Neil Stevenson, DeputyDirector of Education andTraining at the Law Society ofScotland, said:“The Society isdelighted that the University ofStirling has been accredited andwe wish them luck in thecoming year as they implementtheir programme.Theaccreditation process ensuresstandards are met in relation toareas such as the teaching staff,curriculum, facilities andresearch in the development ofthe lawyers of the future.Thepanel were particularlyimpressed at the standard ofapplication by Stirling and theirrecommendation was approvedunanimously by the Council ofthe Society.”

Head of the Department ofAccounting, Finance and Law,Professor Gavin Little said:

“The university is lookingforward to welcoming its firstLLB students in the autumnand to establishing new linkswith the legal profession.Theprovision of an LLB degreewhich is accredited by the LawSociety of Scotland is animportant part of the strategicexpansion of law as a disciplinewithin the university. It buildson existing strengths in lawteaching and research and isan exciting new developmentfor us.”

EMPLOYMENTTRIBUNAL CHAIRSThe Lord President hasappointed the following as parttime chairmen of employmenttribunals in Scotland: June MCape; Robert P Cape; Susan J DWalker; Robert C Gall;Margaret M Neilson; Kenneth RRobb.The appointments tookeffect from 25 April 2005.

The Scottish Solicitors’ BenevolentFund Golf Outing returns again thisyear to the two magnificentcourses at Blairgowrie Golf Club,on Tuesday 16 August.The formatis stableford with the competitionbeing run as an individual and teamtournament.

Entries are invited from faculty,society and association teams.Thecost per team of four is £290, which

includes soup and rolls on arrival,green fees, high teas andcontributions towards individual andteam prizes.

The Legal Post (Scotland) Ltdhave kindly agreed again tosponsor this year’s event, and alsoto defend their title which theywon convincingly last year. It isalso hoped that the Society’sChief Executive, Douglas Mill, will

return to defend his long drivingtitle, for which an appropriateprize will be obtained!

Entry forms and further informationare available from Ross D Ireland,Willliamson & Henry, 13 St MaryStreet, Kirkcudbright (DX 580813;LP-1, Kirkcudbright; tel 01557330692; fax 01557 331540; [email protected]).The deadline for entries is 15 July.

Calling benevolent golfers

Following representations by the Society’s SuccessionLaw Sub-Committee, which led to a shortconsultation exercise, the Scottish Executive hasmade two orders affecting financial limits inexecutries.

The Confirmation to Small Estates (Scotland) Order2005 (SSI 2005/251) increased from £25,000 to£30,000 the limit of value of a deceased person’sestate at or below which confirmation of executorsmay be obtained by the simplified proceduresprescribed by the Intestates Widows and Children(Scotland) Act 1875 (for small intestate estates) andby the Small Testate Estates (Scotland) Act 1876 (forsmall testate estates).The Order came into force on1 June 2005.

From the same day the Prior Rights of SurvivingSpouses (Scotland) Order 2005 (SSI 2005/252)increased the surviving spouse’s rights in terms ofsections 8 and 9 of the Succession (Scotland) Act1964. For intestate deaths after the

commencement of the order, the right to thedeceased’s interest as owner or tenant in adwellinghouse in which the surviving spouse wasordinarily resident, rises from a maximum value of£130,000 to a maximum of £300,000.Thisrecognises the change in property values sincethe limit was last raised in 1999. Where the valueof the interest exceeds £300,000, the right is tothat sum.

The right to the furniture and plenishings in thathouse has also been raised to a maximum value of£24,000 (from £22,000); and the further right to acash sum is increased from £35,000 to £42,000where the deceased left issue, and from £58,000 to£75,000 where there are no issue.

Anyone who wishes to access these orders can findthem at http://www.opsi.gov.uk/legislation/scotland/ssi2005/20050251.htm and

http://www.opsi.gov.uk/legislation/scotland/ssi2005/

Succession law unfairness eased


SOCIETY

Commission stillpursuing competitionThe Luxembourg Presidency of theEU recently hosted a conference oncompetition and the liberalprofessions, following up on theCommission report of February2004 on the matter.The LawSocieties and a number of otherEuropean bars were represented atthe event.The Commission’sDirector General for competitionand his deputy both gave theirthoughts on the state of play.Theynoted the significant developmentsthat had occurred in some memberstates in reforming their regulatoryenvironments, citing the UK as aprime example.

Discussions centred on howreducing unnecessarily restrictiveregulation and improvingcompetition could meet the needs

of the public interest and of accessto justice.There was somedisagreement as to whether thesegoals were complementary.TheCommission expressed itswillingness to work constructivelywith professional bodies to achievethe goals sought.A progress reportis to be published by theCommission before the summerbreak and the UK is planning tohold its own conference on thesubject as part of its Presidencyprogramme.

Don’t overlook SOLVITSOLVIT has reported that thenumber of complaints it hadreceived about the way publicauthorities in EU member statesapply EU law rose in 2004 by 72%.It also claimed to have resolved 80%of these complaints.The recordsounds impressive, but the fact that

SOLVIT only received 289complaints from across the EUindicates its low profile.

So what is it? SOLVIT is a networkof government offices established inall Internal Market states (all EUmember states, plus Iceland,Liechtenstein and Norway). Itsobject is to deal with failures bymember state authorities to applyEU law properly, and anyoneaffected by such a failure maycomplain directly to SOLVIT.Themost frequent cases concernrecognition of professionalqualifications, market access forproducts, social security andtaxation. SOLVIT’s reportedsuccesses include getting Belgianauthorities to take account of ateacher’s experience in Holland forthe purposes of pay, getting the UKGeneral Medical Council torecognise an Icelandic doctor’s

medical qualifications, and helping aSpaniard get access to welfare inIreland. Complaints can be made ona form available in English and locallanguages on the SOLVIT websitehttp://europa.eu.int/solvit/site/index_en.htm .

What next for EU level justice? The European Commissionlaunched its five-year action plan onjustice and home affairs in April,setting out strategic objectives andan indicative legislative timetable. Itfollows on from last year’s HagueProgramme, which set out thepolicy priorities of EU heads of stateand government. Matters addressedinclude civil litigation, family law,asylum and immigration, seriouscrime, terrorism and police co-operation.

The Hague Programme Action Planis billed by the EuropeanCommission as a cornerstone of itsstrategic objectives for the periodup to 2010, which are built aroundachieving prosperity, solidarity andsecurity. Security, bolstering policeco-operation and improvinginformation sharing are therefore alltop priority and subject to tightlegislative timetables.There is also astrong emphasis on buildingconfidence and developing mutualtrust among member states toensure high quality justice.A longoverdue commitment is given tocreating minimum proceduralstandards as regards fairness andrespect for the rights of defence,and it is accompanied by acommitment to monitoring andpromoting fundamental rights. But isthis bold rhetoric enough? Will theAction Plan be followed byconcrete developments?

As the UK takes up the Presidency of the European Union, a largenumber of legal issues are on the agenda of the EU institutions.Theseitems, taken from the Brussels Agenda published by the joint Brusselsoffice of the UK Law Societies, outline some of the developments

Heavy agenda for the UKPHOTO: EUROPEAN PARLIAMENT


The Action Plan again rehearses theidea of a European judicial area,taking EU justice policy muchfurther than just co-operation.Theprinciple of mutual recognition isdeveloped and presented not justas an administrative processwhereby judgments obtained in onemember state are recognised andenforced in other member states,but rather as the foundation onwhich effective access to justice isguaranteed. Indeed, one of the aimsof the Hague Programme is to getrid of administrative formalities thathinder mutual recognition.Thequestion is whether eliminatingobstacles also means eliminatingprotections.A recent Commissioncommunication on mutualrecognition discusses these issues.

Once the Action Plan has beenendorsed by EU Justice Ministers inJune, it will be up to the UKPresidency starting in July to takethe lead on some key dossiers andset the Action Plan in motion.

A European smallclaims procedure?Pursuing a low-value claim against aparty in another member state canbe a complex, costly process.Toaddress these problems theEuropean Commission proposed adraft regulation for a European smallclaims procedure in March 2005(http://europa.eu.int/comm/justice_home/doc_centre/civil/doc/com_2005_087_en.pdf).The procedurewould be available for the pursuit ofclaims worth less than 2,000 euroand would be a largely writtenprocedure, intended to be simpleenough for individuals to raise andcontest claims in other countrieswithout representation.Considerable responsibility istherefore placed on the court tocheck that claims are properly filledout, to serve documents and tomeet deadlines.As this is designedto be a swift, simple procedure, asix-month deadline from lodging tofinal judgment has been set.

This proposal ties in with twoothers on cross-border litigation:first, the European EnforcementOrder, which is an order attachedto a default judgment in onemember state so that it can beenforced with minimum proceduralobligations in another.This should beavailable in the UK from 21October 2005. Second is theEuropean Payment OrderProcedure for bringing uncontestedclaims.While the European

The procedure... would be a largelywritten procedure,... simple enough forindividuals to raise and contest claims inother countries without representation

Commission considers that theprocedure should be available inboth domestic and cross-border EUcases, most member states want tolimit the mechanism to the lattersituation.A similar discussion willtake place over the small claimsprocedure.

Tackling cross-bordersuccession issuesEU citizens increasingly work orown property in another memberstate or have a partner fromanother member state.There istherefore a perceived need for newEU legislation to deal with cross-border legal difficulties that arise.The future EU legislative package onsuccession will radically change the

previous discussions, there appearednot to be a sufficient majority ofmember states either for or againstscrapping the opt-out.Theforthcoming UK Presidency may berequired to manage some trickydiscussions on this dossier.

Prisoner transfers to homecountry proposedA proposal before the Council ofMinisters would allow one memberstate to require another memberstate to accept the return ofnationals and residents sentenced toa prison term by the courts of thefirst. Returned prisoners would thenserve out their sentences at home.

The proposers say this wouldimprove on the present system for

rules of private international law inEurope. Proposals for considerationinclude new conflict of lawsregulations, new rules onjurisdiction, an EU inheritancecertificate and an EU wills register.The recently published green paperinvites responses by 30 September2005. See http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0065en01.pdf .

Working time opt-outunder threatAs widely predicted, the EuropeanParliament decided on 11 May toput an end to the opt-out in theWorking Time Directive, which hasallowed individuals to choose towork more than 48 hours perweek. If adopted, this would comeinto effect three years after the newamended directive is implemented.The Parliament also decided that alltime spent on call at the workplaceshould be considered working time.The periods during which a workeris not actively “working” could,however, be counted differently forthe purposes of calculating thehours worked per week. Currently,such time is counted as normalworking time, which has causedmany problems, for instance withdoctors and health sector workers.

The proposal now passes to theCouncil of Ministers. During

transfer of prisoners, governed bythe 1983 Council of EuropeConvention on the Transfer ofSentenced Persons, which is slowand bureaucratic.The proposal isalso designed to complement thelegislation on the European ArrestWarrant (EAW), which allowsmember states to require thatanyone surrendered to anothercountry through an EAW must bereturned home to serve theirsentence.

Unlike the present system, prisonerswould not have the right to objectto the new EU order for transfer(to be known as a EuropeanEnforcement Order), though theywould have a right to be informedand give their opinion.The UKGovernment has welcomed theinitiative, though the House ofCommons EU Scrutiny Committeehas expressed doubts as to theneed for such an order.

Enhancing shareholders’ rightsAs part of the 2003 Action Plan tomodernise company law andenhance corporate governance, theEuropean Commission launched aconsultation in September 2004 onshareholders’ rights and cross-border voting. It sought views fromthe public regarding obstacles tocross-border voting, the exercise ofshareholders’ rights in generalmeetings of listed companies and

the desirability of EU minimumstandards in those areas.The resultsare said to show support for EU-wide measures.

The Commission has now launcheda second consultation focusing onmore specific measures to deal withissues identified in the firstconsultation. Questions includewhether to grant “ultimateinvestors” legal rights over howvotes are cast, the effect of stocklending on voting rights, the status ofdepositary receipts, methods forvoting at distance and other rightsconcerning participation in generalmeetings, as well as the availability ofagenda, documentation and votingresults.The consultation closes on15 July 2005.The consultationdocument is athttp://europa.eu.int/comm/internal_market/company/docs/shareholders/consultation2_en.pdf .

Less regulation infinancial services?The Commission has launched agreen paper on financial servicespolicy for the period 2005 to 2010.The green paper(http://europa.eu.int/comm/internal_market/finances/docs/actionplan/index/green_en.pdf) is open forpublic consultation until 1 Augustand the Commission’s finalprogramme will follow inNovember 2005.As was promisedby Commissioner McCreevy overthe last few months, the emphasis ofthe paper is on the implementationand consolidation of existingmeasures adopted under theprevious Financial Services ActionPlan, and on enforcement.Thepaper highlights the importance ofsupervisory convergence in thefinancial services sector and theneed for effective enforcement onthe part of all market players(member states, nationalsupervisory authorities, Europeaninstitutions and market participants).

The paper also has a strongemphasis throughout on betterregulation, noting that all legislativeproposals will have to be shown tobe necessary (putting into questioncurrent proposals) and that piecesof legislation failing to meet theirobjectives may be repealed.TheCommission identified two areas fornew initiatives: the retail financialservices sector, which remainsfragmented, and the field of assetmanagement.A green paper on thelatter will be published in July 2005.

Is sentencing coming to betreated as more of an exactscience than an exercise ofdiscretion, wonders SheriffANDREW LOTHIAN, as hesurveys the latest decisionsfrom the criminal appeal court

The Journal: June 200546 :

professional briefing

In pursuit of an idealAnecdotally, it seems that the first 18appeals in court one day not so longago were concerned with the discounton offer in Du Plooy terms.As thiswould represent an 18-fold increase inthe work of the appeal court it surelycannot be true, although my sourcewould seem an impeccable one.However there is an underlying themeto all this, which is the belief thatsomewhere, for every crime, the idealsentence exists.What has happened isthat in conformity with this, regularity,parity and conformity are pursued atall costs, and rather than judges of firstinstance being afforded a generaldiscretion, which will admittedly resultin sentences in similar circumstanceswhich do differ, but not materially, theappeal court is inclined to adopt astricter, perhaps more mathematicalapproach.Accordingly it now seems tobe the law that, while base sentencesmay to an extent vary withcircumstances, the rate of discountshould not. Personally I think that itmight have been better to haveallowed a situation in which therewere irregularities, provided theparticular result was not wildly out ofalignment with the generality.

Discount difficultiesAlthough it was some time ago now,there was an era in which the twojudges in one sheriff court dealt with

drunk driving in different ways, withone increasing the period ofdisqualification along with the level ofdrink, while the other reflected this inlarger fines. It was a situation withwhich the appeal court seemed happyto live. In that spirit we turn to Stewartv Griffiths 2005 GWD 11-172.Thisseems to establish that in road trafficcases as far as penalty points go, thereshould be no discount for an earlyplea, these being in the nature of apublic warning. (It does appear,however, from Barrie v Williams 2005GWD 11-191 that a period ofdisqualification, where appropriate, canbe discounted.) However the appealcourt did reduce a fine of £450 toone of £350.The sheriff had given nodiscount, as the accused pled guilty atthe trial diet. It appeared however thatas a result of discussions the witnesseshad been countermanded and for thispublic service a discount of two ninthswas allowed.That being about as lateas one could plead, this would seem tobe the least discount possible.

Discount difficulties are approachedagain in the solemn case of Paterson vHMA 2005 GWD 11-173, where thecrime involved was rape and therewere difficulties about the intellectualcapacities of both accused and victim.It is not necessary to rehearse thefacts to be able to point out that thecourt once again emphasised theimportance of timeous, decisive and

unequivocal activity on the part of thedefence if the maximum discount is tobe available.

The next reported case, Clark v HMA2005 GWD 11-174, is of interestparticularly because the groundsargued on appeal appear to havegone rather further than the reasonssubmitted to the appeal court, andthus available for comment by theoriginal judge, thus confirming awidely held belief that the court ofappeal is more properly a court ofreview. In Adamson v HMA 2005GWD 12-204, the appeal court heldthat the judge of first instance had gotboth the base rate and the discountrate wrong and instead of a sentenceof six years (which was eightdiscounted by 25%), imposed asentence of four years, being a basesentence of six years discounted byone third.There are also in this issueof the Digest a couple of drivingdiscount cases, Henderson v Lang(192) and Barrie v Williamson.

Differing approachesStill on road traffic, but with a differentpoint in mind, Falconer v Service 2005GWD 12-196 serves as a reminderthan when the charge is one ofspeeding, no matter how fast, this isnot the same as a charge of dangerousdriving and should not be treated bythe court for sentencing purposes assuch.Another case on disqualification,

CRIMINALCOURT


Terms and sentences

The Journal: June 2005 : 47

this month

ESSENTIALREADINGThe Land Court has cleared up

the confusion surrounding the

review of agricultural rents

See Agriculture p48 ››

CONTENTSCriminal court 46

Agriculture 48

Land Court begins to exerciseits enlarged jurisdiction

Sport 49

Players’ and governing bodies’sponsorship deals begin to clash

Discipline Tribunal 50

Website reviews 52

The new, improved ScottishCourts website

Book reviews 53

Peter Morris v PF Paisley,unreported at the time of writing,was decided on 20 April 2005. Init the sheriff imposed twoconcurrent periods of 12 months’disqualification for the reason thathe was not able to impose twoconsecutive periods of sixmonths’ disqualification.Theappeal court held that thisapproach was not open to thesheriff and imposed twoconcurrent periods of six months’disqualification.

Incidentally on the same datethe court, in the case of Herkesv PF Dundee, allowed an appealagainst the imposition of aperiod of two months’imprisonment in respect of abreach of the peace atNinewells Hospital.The court’sreason for this was thatimprisonment, for a first offenderwith a good work record, wasnot the only disposal possible. Afine of £500, discounted from£600 for an early plea, wassubstituted. One does not wantto go on about the discount, butthe plea of guilty was at the firstcalling and might, arguably, haveattracted a larger discount thanone sixth.

Another interesting case aboutsentencing is Stevenson vDonaldson 2005 GWD 12-210, inwhich a person who was inbreach of a probation order with

a condition of community servicereceived a sentence of 30 days’imprisonment, the judgeapparently taking the view that, asthe Act says, community service isan alternative to custody.However the appeal courtdiffered and imposed anotherperiod of probation with arequirement for more hours ofunpaid work. It seems that thepenalty for not complying wasmore to comply with, but it hasto be borne in mind that people’scircumstances do change,sometimes quite drastically, whilethe legal process is carried on,sometimes slowly and at length.

Matters in evidenceTurning to GWD issue 13 for2005, there are a couple of casesworth notice. Henderson v HMA(222) is about a phone tap, notproved to have been correctlyauthorised, which led to criticalevidence being admitted by thetrial judge on the basis that itwould be justified by laterevidence, which in the event itwas not.The case looks back toLawrie v Muir 1950 SLT 37 for aconsideration of common lawfairness, and also followsMcGibbon v HMA 2004 SLT 588.The essential matter for presentpurposes is that the appeal courtreaffirmed that not all breachesof the law impact on the

admissibility of evidence in acriminal trial. P v Williams (223) isabout the difficulty ofcorroboration when vulnerablewitnesses are testifying and of theneed for forethought about this.What seems to have gone wrongin this case is that the sameperson who spoke to beingassaulted also was the sole linkdescribing the appellant in suchas way as to admit identificationby description from the“corroborating” witnesses who,because they were vulnerable,did not see the appellant in courtas they were behind a screen.

Clients of the systemOne should not, of course, becommenting here on sentencingpolicy, but since the idea is anEnglish one and thus foreign, itseems worthwhile noting that therecent proposals about a high, notto say degrading, profile forcommunity service offendersseem to fall into the trapdiagnosed by Baroness Stern inher 2004 Howard League lecture,namely the consumerist error ofmis-identifying the clients of thecriminal justice system (sic) as thevictims rather than the offenders.Once this mistake takes place,one searches in vain for acoherent philosophy ofsentencing or even forconsistency in approach.There arevery few political slogans withwhich one can take issue – who,for instance would vote for aparty which proposed moredangerous communities and lesssafe streets? – but thepracticalities are another matterand as Abraham Lincoln did notsay, although Bob Dylan mighthave, you really cannot please allof the people all of the time.


Regularity, parity and conformity arepursued at all costs... it now seems...that, while base sentences may to anextent vary with circumstances, the rateof discount should not



The least commented-on part of theAgricultural Holdings (Scotland) Act2003 is Part 7, which transfersprimary jurisdiction for the resolutionof tenancy disputes from arbitrationto the Scottish Land Court. (Partiesmay still, if they prefer, referdifferences to arbitration when thedispute arises, but not by priorcontract; the rules relative to thearbiter’s appointment, procedure tobe followed and form of award havebeen relaxed by the repeal ofschedule 7 to the AgriculturalHoldings (Scotland) Act 1991.)

Appeals from arbitration to the courtare on law only – thus arbitration onrent will be final on fact and theprevious ability to have two bites atthe cherry has ceased. Equally thecourt provides a one-stop forum forrent review.

The lack of comment on thetransition may, I suggest, be becausethis part of the Act was the result ofdetailed consideration by the ScottishLaw Commission, resulting in itsReport no 178, Jurisdictions under theAgricultural Holdings (Scotland) Acts(2000). Part 7 was subsequentlydrafted by the Commission itself.

A broadened remitIn installing the Land Court as firstport of call, the Act has broadenedthe matters which may beconsidered by the court from thosereferred to arbitration under the1991 Act (including the section 60general reference of “any question ordifference”).These now extend towhether a tenancy exists or has beenterminated, any issue or fact or lawrelating to a tenancy or to agriculturewhich the landlord or tenantreasonably requires to have resolved(including tenant’s right to buy, otherthan questions of fact in determiningthe price), and any differencebetween a tenant and assignee

arising out of assignation. Questionsrelating to succession, however,remain in the jurisdiction of theordinary courts.

Furthermore, the Act extends theremedies available to the courtbeyond those previously available toan arbiter, to include any or all ofinterdict (including interim interdict),orders ad factum praestandum,specific implement, specific restitution,reduction or rectification, removal orejection (but not interim orders),damages and declarator.

The court is final on fact, butquestions of law may be appealed tothe Court of Session (except wherethe court is, itself, exercising appellatejurisdiction, as from the decision ofan arbiter), which may quash, confirmor vary the court’s determinationand, where quashing, remit to thecourt for further procedure anddirect it on a question of law.

Jurisdiction is broadly similar inrelation to 1991 Act tenancies andSLDTs, LDTs and 2003 Act grazingtenancies, including the question ofwhether one or other of the newtenancies exists or has beenterminated. Applications may be jointor several.

An interesting aspect of its extendedrole is the power of the sheriffcourts and Court of Session (section86) to remit cases to the court (oftheir own accord or on the motionof any party) at any stage if theyconsider it appropriate to do so. Iunderstand that this power hasalready been used on more than oneoccasion.

Resolving ambiguityThe importance of the Land Courtwill inevitably grow as its case lawclarifies the many unclear provisionsof the 2003 Act: for example, whatconstitutes the “reasonable state of

repair” in which a tenant is bound toleave fixed equipment before optingout of a post-lease agreement (1991Act, section 5(4)(b)); what constitutesentering into negotiations with a viewto the transfer of the land, triggeringright to buy; to what extent thetenant may sublet for non-agriculturalpurposes (2003 Act, section 39(3));the various grounds on which thelandlord may object to a notice ofdiversification; and, perhaps mostimportantly, parties’ respectiveobligations in relation to SLDT andLDT for the provision, improvement,replacement, renewal, maintenanceand repair of fixed equipment(section 16).

And, of course, we wait with batedbreath for the court to make anorder under section 72 in respect ofa limited partnership dissolved bynotice by the limited partner issuedbetween 16 September 2002 and 30June 2003.

The important new role of the courtwas, recently, brought into sharpfocus by its decision, on 1 April 2005(Morrison-Low v Paterson’s Executors,RN SLC/232/04), by which it clearedup the confusion surrounding thereview of agricultural rents caused bythe defective amendment of section13 of the 1991 Act by paragraph15(a) of the schedule to the 2003Act.The court determined that thesubsection falls to be read as if themissing words had not been omitted,in order to fulfil the clear intention ofParliament to repeat the previousprovision, given that the amendedsection was meaningless as it stood.The decision is essential reading forlawyers interested in a dissertationon the powers of the courts in theconstruction of statute.

Alasdair Fox,Anderson Strathern

AGRICULTURE

The Land Court begins to make its mark inexercising its newly extended jurisdiction


Rise and riseof the Land Court


The German Football Association(“DFB”) recently entered into anexclusive contract with Adidas tosupply the national side with allsports equipment, including bootsand footwear.The DFB nationalcoach, Jürgen Klinsmann, said: “Therewill be nobody representing thenational team without wearingAdidas boots. If any player says thathe must wear an alternative [brand],he can go home and watch the gameon television.”

The “Schuh-Krieg” (boot war)Traditionally kit-supply agreementshave expressly excluded footwear,ordinarily regarded as tools of theplayers’ or athletes’ trade. Manyplayers have individual exclusiveagreements for footwear, requiringthem to wear one brand whenevercompeting and irrespective of forwhom.The repercussions for theDFB are that the host team at the2006 World Cup could be withoutup to 12 key players due to the“Schuh-Krieg”. Klinsmann’s statedposition suggests those players willnot play, or will have to terminate(probably unlawfully) their ownagreements or act in breach bywearing Adidas boots. If such asituation were to arise in Scotland,the legal issues could includeinterdict, damages and procurementof breach of contract. In sportingterms, if a national association fieldeda team that may not be the bestavailable, the sporting spectacle maybe devalued, in turn affecting theorganising body as rights-holder, thevalue of its product and thecredibility of internationalcompetition.

Players are employees of their clubs.A boots requirement, introduced bya club in the appropriate manner,could constitute a legitimate term ofthe player’s contract of employment.On the other hand, players are not

free to play for a country of theirchoosing and play only if eligible andselected. Selection for representativeinternational honours is regarded as aprivilege and not a right.

International teams have previouslynot sought to qualify the criteria forselection, preferring to select thebest available players, taking intoaccount domestic fixtures, injuriesetc.There have even been examplesof players’ commercial demandsbeing accepted in preference toteam arrangements. In 1974, Dutchlegend Johann Cruyff refused towear the national strip with Adidas’stripes and logos because Pumasponsored him.The KNVB relentedand Cruyff wore a two-stripeversion.Whilst it may seem peculiarthat a national association would riskrestricting its player pool size, as theDFB has threatened, closerconsideration suggests good reason.

The good of the gameAt the highest level of participation,internationalists tend to wearcustom-made boots and the comfortfactor that previously categorisedfootwear as “tools of the trade” isless of a justification compared tocommercial considerations. Playersoften agree six- or seven- figure sumdeals to wear a manufacturer’s boots,whereas they earn little if anythingfor international honours.The crux ofthe impending dispute between theDFB and players is simply competingcommercial interests.The governingbody’s stance is that exclusivity isoffered to the kit and bootwearsupplier in return for increasedconsideration, which is used for thebenefit of the sport within itsjurisdiction. An individual deal, on theother hand, benefits the player, andthe money involved leaves the game.

Recent decisions concerning similarissues have been resolved withoutany indication that “official sponsor”

deals are to be prohibited, providedthere is no unjustified qualitativeassociation placed on the supply ofgoods (see Danish Tennis Federation vCommission OJ [1996] C 138/6;[1996] 4 CMLR 885).Therefore anychallenge by the player(s) would likelyface difficulty. However, the kitwearsupplier and national associationwould need to be careful about theway images and/or names of playerswearing the manufacturer’s bootswere presented, as an action may liein passing off, for example if a player’simage or name was used to advertiseand sell the kit and boots.

If the DFB/Adidas deal heralds anincrease in exclusive sponsorshipdeals for clubs and internationalteams, and it is suggested that it may(the Bradford Bulls rugby leaguechampions recently signed anexclusive kit and boot deal subjectonly to honouring players’ existingdeals), this may lead to a fundamentalchange in kit-supplier andsponsorship culture; exclusivepartnering with teams may increasebut exclusivity with individual playersdecrease. Players will of course seekto resist this change because theirown agreements will be less valuable.

International federations andgoverning bodies should monitor theissue closely, because if “playerpower” is maintained and playerswere to prefer commercialendorsements rather than makingthemselves available for internationalselection, consideration may need tobe given to the regulation of nationalassociations entering into exclusivedeals (similar to the currentregulation of kit-advertisingrestrictions), for the protection of theoverall credibility and marketability ofinternational sporting competition.

Bruce A Caldow,Sports Practice Group,Harper Macleod LLP


SPORT

A dispute between the German Football Association and itsplayers could have implications for international competition

BOOT WARDon’t mention the



JOHN ANTHONY LINDSAY OLIVERA complaint was made by theCouncil of the Law Society ofScotland against John Anthony LindsayOliver, Solicitor, Oliver WS, 13 HighStreet, Hawick (“the respondent”).The Tribunal found the respondentguilty of professional misconduct inrespect of his failure to comply withthe high standards expected of asolicitor accorded the privilege of theoffice of notary public by failing toensure that a power of attorney wasproperly executed by his client andnotarised in the appropriate fashion.The Tribunal censured the respondentand fined him in the sum of £1,000.

Solicitors who become notaries publicare in a privileged position.The publicand the profession are entitled to theprotection that documents, signed onoath before a notary public, have astatus greater than ordinarydocuments, by virtue of thenotarisation. It is essential that thenotary is present when the deponentsigns the document and a solicitormust respect the formalities and nottake short cuts.The Tribunal found thatthe respondent’s conduct fell short ofthe principles expected and broughtthe profession into disrepute.TheTribunal however took account of thefact that the respondent had co-operated and had entered into a jointminute and that the matter had beenhanging over him for a very longperiod.There was also no suggestionthat there had been any cause forconcern in connection with therespondent’s professional practiceduring the last six years.The Tribunaltook account of the referencesprovided and was satisfied that therespondent had learned from thisexperience.The Tribunal accordinglydecided that in the particularcircumstances of the case a censureand a fine of £1,000 would besufficient penalty.

JAMES JOSEPH McGINLEYA complaint was made by the Councilof the Law Society of Scotland againstJames Joseph McGinley, Solicitor, Reilly

McGinley, 57 Ruthven Lane, Glasgow(“the respondent”).The Tribunal foundthe respondent guilty of professionalmisconduct in respect of hisunconscionable delay and at timesfailure to reply to letters from anotherfirm of solicitors and correspondencefrom the Law Society of Scotland, andhis unconscionable delay inimplementing a mandate.The Tribunalcensured the respondent and finedhim in the sum of £1,000.

The Tribunal has made it clear onnumerous occasions that solicitorshave a duty to co-operate with theSociety and to provide, as soon aspracticable, a full and accurateexplanation in respect of any matterwhich is the subject of a complaint. Itis also imperative for solicitors to actwith fellow solicitors in a mannerconsistent to persons having mutualtrust and confidence in each other.The Tribunal however took account ofthe difficulties experienced by therespondent in connection with waterdamage to his offices and also notedthat the respondent had co-operatedwith the Society and entered into ajoint minute in respect of thecomplaint.The respondent had alsotaken steps to improve the situationby reducing his workload and closingbranch offices.The respondentseemed genuinely contrite with regardto his failures.The Tribunal wasaccordingly satisfied that it was notlikely that the respondent’s actionswould be a continuing course ofconduct and the Tribunal consideredthat a censure and a fine of £1,000would be sufficient penalty.

DAVID BAIRD MACADAMA complaint was made by theCouncil of the Law Society ofScotland against David BairdMacadam, Solicitor, 26 Kirk Brae,Edinburgh (“the respondent”).TheTribunal found the respondent guiltyof professional misconduct inrespect of his presenting to his clientfor signature a blank form C1 forthe purpose of obtainingconfirmation, persuading her to sign

it and making dishonestrepresentations to her with regardto the state of preparation, contraryto article 7 of the Code of Conductfor Solicitors Holding PractisingCertificates issued by the LawSociety of Scotland in 1989.TheTribunal censured the respondentand directed in terms of section53(5) of the Solicitors (Scotland)Act 1980 that any practisingcertificate held or issued to therespondent shall be subject to suchrestriction as will limit him to actingas a qualified assistant to, and tobeing supervised by, such employeror successive employers as may beapproved by the Council of the LawSociety of Scotland or the PractisingCertificate Committee of theCouncil of the Law Society ofScotland and that for an aggregateperiod of at least five years andthereafter until such time as hesatisfies the Tribunal that he is fit tohold a full practising certificate.

The tribunal was very concerned bythe respondent’s actions. A form C1 isa formal document which allowsconfirmation to be granted in relationto the estate of a deceased. It ispresented to the court and anexecutor makes a formal declarationin respect of the estate when signingthe form. It is essential that anysolicitor who presents to an executora form C1 for signature shouldrequest the executor to consider theterms of the inventory form in detailand obtain an assurance from theexecutor that they find it to be inorder before inviting the executor tosign. In this case the respondentpersuaded the executor to sign ablank form by telling her that he hadall the information required tocomplete the form when this was notso. It is imperative if the public are tohave faith in the legal profession thatsolicitors deal with these importantforms in a proper and honest manner.The Tribunal considered that in orderto protect the public interest therewould require to be a restriction onthe respondent’s practising certificate.The Tribunal imposed the restriction

TRIBUNAL

SCOTTISH SOLICITORSDISCIPLINE TRIBUNAL



for an aggregate period of at leastfive years and at the end of thisperiod it will be for the respondentto come back to the Tribunal, if heso wishes, to show that he hasgained the necessary maturity andexperience to be able to operatewith a full practising certificate.

ANDREW ROBERT WALKERMILLER AND EILEEN WINGATEMORRISONA complaint was made by theCouncil of the Law Society ofScotland against Andrew RobertWalker Millar, Solicitor, Bank House,1 Stirling Street, Dundee (“the firstnamed respondent”) and EileenWingate Morrison, Solicitor,Briardeane, Aytounhill, Newburgh(“the second named respondent”).The Tribunal found the first namedrespondent guilty of professionalmisconduct in respect of hisfraudulently completing withdrawalforms which were received fromfinancial institutions by appendingthereto the signature of anexecutor, fraudulently completing awithdrawal form by alleging that hewitnessed the signature of anexecutor and thereafter returningthese withdrawal forms which heknew to be dishonestly completedto the financial institutions involveduttering them as genuine; and foundthe second named respondentguilty of professional misconduct inrespect of her failure adequately tosupervise and have regard to thework being carried out by the firstnamed respondent who at the timewas employed by her in thecapacity of an assistant.The Tribunalordered that the name of the firstnamed respondent be struck offthe Roll of Solicitors in Scotlandand censured the second namedrespondent.

The first named respondentacted in a dishonest fashion byfraudulently completingwithdrawal forms from financialinstitutions and forged thesignature of an executor on fiveoccasions. He thereafter utteredthese as genuine to the financialinstitutions and also acted in adishonest fashion by purportedlywitnessing the forged signaturewhich he had appended to theform delivered by Allied DunbarPLC.The Tribunal considered thatthe first named respondent’sconduct amounted to criminal

behaviour and was regrettablydisgraceful and dishonourable.The public are entitled to expectsolicitors to be persons ofintegrity.The Tribunal noted thatthere had been no financial gainto the first named respondentand that he had entered into ajoint minute. However, given thatthe first named respondent haddeliberately forged the signatureon five occasions without havingmade any attempt to contact theexecutor with regard to theexecutry, the Tribunal felt thatthere was no place in thesolicitors’ profession for someonewho would act in this way andhad no option but to strike thefirst named respondent’s namefrom the Roll of Solicitors inScotland.

In connection with the secondnamed respondent the Tribunalconsidered that she should havepaid more attention to thecorrespondence, especially whenshe was aware that there wasanimosity between the executorand the first named respondent. Itwas however clear that the secondnamed respondent was placed in adifficult situation and was carryingout some level of supervision.TheTribunal accepted that the secondnamed respondent had no reasonto suspect that the first namedrespondent would be forging anexecutor’s signature. It was clearthat the second named respondentwas now working competently asan assistant and there was noreason to think that there would beany likelihood of anything similarhappening in future.The Tribunalaccordingly considered a censure tobe a sufficient penalty.

DUNCAN McKINNON BURDA complaint was made by theCouncil of the Law Society ofScotland against Duncan McKinnonBurd, Solicitor, MacDonald House,Somerled Square, Portree, Isle ofSkye (“the respondent”).TheTribunal made no finding ofprofessional misconduct against therespondent but found therespondent liable in one half of theexpenses of the complainers andone half of the expenses of theTribunal.

The Tribunal heard evidence andsubmissions from both parties.The Tribunal accepted that therewas a long established practice of

using nominee provisions inmissives in certain situations andwas of the view that there isnothing wrong with this inprinciple.The Tribunal alsoaccepted that the identity of thenominee may not be revealed insome circumstances until after theconclusion of the missives.However in this case the nomineeprovision was used in order todisguise the identity of thepurchaser and it was known thatif the offer had been in the nameof the purchaser it would nothave been accepted.The Tribunallooked at the whole course ofconduct of the respondent andhis intent.The respondent’sactings did result in the sellerassuming that the respondent wasthe purchaser of the property onhis own behalf.The seller had,however, been legally representedand her solicitor had apparentlyexplained the implications of thenominee clause to her but shehad not understood it.TheTribunal accordingly did not findthat the respondent’s conductwas so serious and reprehensibleso as to amount to professionalmisconduct.The Tribunal howeverwould wish to disassociate itselffrom the respondent’s conductand considered that it was notwise for the respondent to usehis own name as nominee in thecircumstances.The Tribunalconsidered that the respondent’sactings amounted tounprofessional conduct.TheTribunal also considered that theSociety had had no alternative butto prosecute and had been fullyjustified in taking the complaint tothe Tribunal. As the respondent’sconduct had fallen very narrowlyshort of professional misconductthe Tribunal found the respondentliable in 50% of the expenses ofthe complainers and the Tribunal.

THOMAS HUGH MURRAYA complaint was made by theCouncil of the Law Society ofScotland against Thomas HughMurray, Solicitor, 100 PendeenRoad, Glasgow (“therespondent”).The Tribunal foundthe respondent guilty ofprofessional misconduct in respectof his deceiving his client bytransferring a sum of moneyreceived from his clientimmediately to the firm account

without having carried out thework as agreed between him andhis client and without issuing hisclient with a fee note andwithout, at that time, makingpayment of, or making anyprovision for monies due inrespect of the VAT element onthe purported fee, all contrary toarticle 7 of the Code of Conductfor Solicitors Holding PractisingCertificates issued by the LawSociety in 1989 and contrary torule 6 of the Solicitors (Scotland)Accounts Rules 1997.The Tribunalcensured the respondent anddirected in terms of section 53(5)of the Solicitors (Scotland) Act1980 that any practising certificateheld or to be issued to therespondent shall be subject tosuch restriction as will limit him toacting as a qualified assistant tosuch employer or successiveemployers as may be approved bythe Council of the Law Society ofScotland and that for an aggregateperiod of three years.

After hearing evidence theTribunal found the respondentguilty of professional misconduct.The Tribunal was satisfied beyondreasonable doubt that therespondent had deceived hisclient by taking fees contrary tothe basis on which he persuadedthe client to give him the moneyas set out in a letter to the client.The essential qualities of asolicitor are honesty, truthfulnessand integrity and a solicitor whofalls short of this brings the legalprofession into disrepute.Therespondent’s deceit of his clientwas serious and reprehensible.The Tribunal however noted thatthe respondent’s client had notbeen out of pocket in the caseand it was clear that therespondent had already donesome work by the time he tookmoney to fees.The Tribunal wasof the view that the respondentrequired supervision in order togain the necessary guidance andexperience prior to being able towork again as a sole practitioner.The Tribunal felt that a restrictionon his practising certificate wasthe best way of ensuringprotection of the public.


Visit the Tribunal’swebsite at www.ssdt.org.uk




Scottish Courts websitewww.scotcourts.gov.uk

To celebrate the 10thanniversary of the ScottishCourt Service’s inception asa Scottish Executive agency,their website has beenoverhauled, updated andrefined.The new look sitewas launched on 14 May2005, and your webreviewer has been surfing itspages ever since to bringyou a verdict without theneed for avizandum.

Well, first of all, the site nowlooks the part.The previousdesign was a little bit tiredand didn’t really project aprofessional or modern (noreven particularly traditional)image of the court service.Gone is the off-yellowbackground colour. Gonetoo, are the ghastlynavigational frames. In theirplace is a crisp, clean andmodern design whichmanages to providenumerous navigation optionson every page withoutmaking the screen seemcrowded.

To be fair to the old versionof the site, the usefulness ofthe information to begarnered from the sitealways far outweighed anycomplaints about the design(though I’m sure visitorswith web browsers whichcouldn’t handle frames feltdifferently).Anyway, all of theold reasons for visiting thewebsite are still here and, infact, are now even easier tolocate. So, you can stillaccess a searchable database

of judgments issuing forthfrom both sheriff andSupreme Courts.And youcan still find information onsheriff courts across thecountry.

As I said, this information isnew and improved too.Theold colourful map ofsheriffdoms has beenreplaced by a much nicerinteractive one, which lightsup as you point at differentareas; and the informationon the sheriff courts hasbeen expanded andrepackaged, including (asbefore) maps, directions,photos, instructions on whoto report to on arrival,availability of parking, whereto get a nice cup of teanearby, etc etc.You can alsoaccess the weekly court rollsjust to check your case is stillon and which sheriff hasbeen allocated.

In addition to the oldinformation in (very nice)new clothing, there are ahandful of exciting newfeatures too. Foremostamong these is the newsearch facility, which allows asite-wide search forkeywords, rather than justsearching (for example) thecases. Inevitably, on testingthis function, the majority ofresults returned were in factcases. Having said that, therewas at least one non-casereturn in each instance,which can only add to theutility of this feature.

The Scottish Courts websitehas also adopted the nownear ubiquitous RSS and

offers users the opportunityto have automatic updates(including fresh Court ofSession/High Court rolls)delivered directly to a newsaggregator or website.Alsoinformation is generally verymuch better laid out andorganised. So with just acouple of clicks one candownload the complete setof court rules (small claims,summary/ordinary causeand Court of Session).Thesemay well have been availableon the previous version ofthe site, but you would haveneeded to track themdown.

In lauding the removal offrames from the site, wehave already touched onaccessibility issues, andcertainly the new siteseems at least to be takingthe issue much moreseriously. Although the sitehas not yet been formallyvalidated, and despite thelack of access keys, it looksas if court users with visualor motor impairmentswould be able to make useof it without too many

difficulties.The introductionof a text-only version ofthe website helps a bit, andthe main version seems tobe pretty reasonable too. Itis heartening whengovernment bodies startcomplying with the law!

What else? Well, it is stillearly days for the new lookwebsite, but already there isa big improvement evident.The navigation is not entirelywrinkle free and I stumbledacross more than onebroken (internal) link – alsothe 404 error page looked abit weird in both Firefox andNavigator browsers. Iwouldn’t want to be harshon a site which, by its ownadmission, is not the finishedarticle. More changes andupdates are promised and,as if to underline thecommitment to thatpromise, the new vacanciessection includes an advertfor the post of webdeveloper/designer.Thesuccessful candidate will nodoubt be kept busy, butalready has a solidfoundation to build on.

A review of the recently updatedScottish Court Service website

New andimproved

The web review columnis written by Iain ANisbet of GovanLaw Centre.e: [email protected]

All of these links andhundreds more canbe found atwww.absolvitor.com.

WEBSITEREVIEW


BOOKREVIEW

Summary Cause Procedure in theSheriff Court: Second editionIn the absence of anupdate of the secondedition of Macphail onSheriff Court Practice,Vol 2,this publication admirablyfills the gap.The author hasproduced acomprehensive andpractical guide onsummary cause procedure.

The book will be aninvaluable aid to the busypractitioner. It is not only aprocedural guide; it also

provides valuable guidance,with reference to theappropriate authority, onthe framing of pleadings,and the preparation andconduct of the proofincluding a comprehensivepassage dealing with therecovery of evidence.

Dear to the busypractitioner’s heart, there isan extensive passagediscussing the exercise ofthe sheriff ’s dispensing

power in which the authorreviews all leadingauthorities. Similarly theauthor, in discussing appeals,deals not only withprocedure for appeal butalso extensively with therights of appeal, againexamining the relevantauthorities in some detail.The thorny subject ofexpenses is also tackled indepth by the author.

All in all, the author has

produced a comprehensive,well researched andauthoritative guide to theconduct of summary cause.It will be a valuable additionto the practitioner’s library,more so when the long-overdue increase insummary cause limit isintroduced.

Graham Wilson,Russells Gibson McCaffrey

AUTHOR: DEREKP AUCHIE

PUBLISHER:TOTTEL

ISBN: 0 406 95704 5

PRICE: £78

Mr Pagan’s autobiographywould be an ideal gift foranyone who believeslawyers are dull,conventional and obsessive-compulsive. Lawyers who fitthis stereotype may find itmaddening. It meanders in adelightfully eccentric andoccasionally surreal wayamong decades, themes andpeople. For the reader whois willing to go with the flow,this is a delightful, amusingand passionate book.

Unless you have no interestin law, politics, humanrelationships, jazz, death,housing, nature, coincidenceor absurdity, you will not bebored, although the writer’sinterests are so wide thateach chapter is somethingof a bran tub.What gives itcoherence, and makes thisa unique autobiography, ishis disarming lack of ego.

Ian Hamilton’s foreword –“The author is something ofan oddity… Graeme Pagan

is a miserly bastard” – setsthe tone.The book properopens with his turning thewrong way at his degreeceremony and clamberingbackwards over hisprofessors and fellowgraduands. It develops, witha complete disregard ofchronology, through hiscareer as a fiscal (“It wasnot of course the only timeI made a blunder in court”);scholastic career (“it wasdecided that I was too thickto go into the right streamfor university”); hisunscheduled appearance ona catwalk of a ladies’ fashionparade; and some candidclient feedback: “Damn andblast you to hell – you havegrossly mishandled mybusiness”, and “Howdreadful a mistake I made inlowering my dignity tostoop and take you into mybusiness affairs, Mr Pagan,let alone confide anythingto you for your mannersare uncouth to say the

least!” being memorabletestimonials from non-delighted clients.

Nor does all this modestyever strike a false note.Theauthor’s breadth ofcompassion is unusual andmoving in our ratherjudgmental profession.Clients who barracked him,recidivists he prosecuted,past presidents he trainedpass through the pages. Heregards humanity withtremendous tolerance, localgovernment officials apart.

The book will reinforcesome “Sutherland’s Law”fantasies: wily Highlandersscorning bureaucracy, long-term colleagues, beautifulscenery. But it subvertsothers. He had been inOban for almost 10 yearsbefore seeing anoystercatcher, because ofpressure of work. Hedefended “a nice but ratherinadequate client” who haddrunkenly taken a gun to

the supermarket where hisestranged wife was working;after an eight-year prisonsentence, the client “died ofexposure one winter’s nightwhile he was sleeping roughin Oban”. Mr Pagan’s widerpolitical involvement meansthat, despite the book’swarmth, it never slips intothe merely couthy. In its bestmoments it is charminglybizarre.The temptation is toquote and quote, but onefinal vignette will suffice:

“The last I heard of him thatday was that hedisappeared down thecourt steps held upright bytwo policemen and singingthe only words of his cross-examination [‘Tell the truth’]to the tune of the WilliamTell Overture.”

Rosalind M M McInnes,BBC Scotland

AUTHOR: GRAEMEH PAGAN

PUBLISHER: BIRLINN

ISBN: 1 84158 307 3

PRICE: £8.99

Once bitten, twice fined

Please send any suggestions on future books to be reviewed to:

Alistair Bonnington,The Law School,The Stair Building,University of Glasgow,G12 8QQe: [email protected]


property lawyer


Don’t make itCOMPULSORY

The announcement by theCommunities Minister, MalcolmChisholm that the Executive is tointroduce a compulsory singlesurvey scheme across Scotland hasbeen met with anger and disbeliefby many property professionals andsellers.

Many legal firms including my owntook part in the Single Survey Pilotscheme after seminars were held invarious cities explaining it. My firmbecame involved to ensure that ourclients were aware of the possiblebenefits.A true pilot study wouldevaluate whether the pilot works inpractice and whether there is agenuine demand for it in themarket. Perhaps it was naive of meto think that the results would beproperly analysed and then adecision made on those results asto whether or not to introduce it.The decision to impose acompulsory scheme only eightmonths into the scheme and withonly 74 surveys came as a shock.Avoluntary scheme is one thing (andfor the avoidance of doubt I dothink a voluntary scheme isacceptable), but a compulsory oneis quite another.

What we have here is a tacitacknowledgment that the pilot hasbeen a failure, but the Executive isgoing to impose it anyway despitethe evidence of lack of enthusiasmfor it by the selling public.

The poor will suffer mostIf it becomes compulsory, as nowproposed, it will mean that for thebenefit of the relatively lowpercentage of transactions involvingfirst time buyers, all sellers will sufferby having imposed on them up-front costs in the region of £600 to£700 to sell their home.

Poorer clients will suffer most.Sellers compelled by moneyproblems to consider selling theirhouse will not now be able to doso, ironically lessening supply andincreasing demand.They would haveto pay these costs at the outset,leaving some with no alternative butto surrender the keys to their

lender, thus boosting repossessionfigures. Once the selling public ingeneral realise the cost implicationsthe Minister is likely to facesignificant resistance and opposition.

It is also the case that the marketitself has adapted to the problem ofmultiple surveys. In Edinburgh,where as many as 12 peopleoffered for the one property, apractice developed of solicitors andestate agents allowing offers to belodged “subject to survey”. Whilethis is not without its problems, itshowed a willingness of the publicand professionals to work togetherto find a solution and avoidexpense, and practically meant therewas only a single survey.

The cost element has not beenproperly researched.While manyfirst time buyers have had to paymultiple survey costs this will beinsignificant compared to the cost tothe selling public in general byadding around £700 to their bills forevery single property for sale.

Sellers will payA problem for the Minister is thatthe proposed legislation appears tobe anti-competitive. It is going togive no choice to sellers as to thetype of survey they can instruct.Atpresent there is a choice of aScheme 1 valuation report, aScheme 2 report, which is ahousebuyer’s report (similar to thesingle survey type report which iseffectively a Scheme 2 with a belland whistle attached), and astructural survey report. The selleris now to have no choice.

Worse still is the fact that sellerswill be bound to provide a surveywhich purchasers may not wish toaccept and rely on because theydo not trust the independence ofthe surveyor who prepared it.Thatwill mean that many offerors willsimply put in an offer to buy, statingthat their price is inclusive of thecost of the single survey, but inpractice it will make no differenceto their offer.

A single survey report may also goout of date in a buyers’ market

when properties are harder to sell,and presumably a further report willhave to be commissioned atadditional cost.

I fear that this may be the thin edgeof the wedge and purchaserinformation packs will follow,comprising various reports obtainedin advance of sale, available forexamination by a purchaser.Thismay lead to another problem ofmultiple title examinations.Theinformation has to be up to date aslenders will not accept datedreports. I would urge the Executiveto restart the ScotLIS projectinstead, which would provide asingle gateway to information froma wide variety of providers that canbe accessed online and so can beprovided speedily when required.

It is ironic that the pilot scheme bythe Executive, involving positive

participation of solicitors and otherproperty professionals in a spirit ofpartnership and their devoting timeto test the pilot, should end withsuch an arrogant dismissal of the co-operation and views of thoseproperty professionals, and views ofthe sellers who were not attractedto it.This authoritarian “nanny state”approach is not edifying, nor likely tofoster co-operation by propertyprofessionals and their clients infuture pilot schemes.

Ian C Ferguson is a partner in theCommercial and Property Departmentat Mitchells Roberton, Glasgow, and aCouncil Member of the Scottish LawAgents Society.The Society’s evidencesubmitted to the CommunitiesCommittee can be viewed atwww.slas.co.uk.

Information from the Registersturnaround times

The current averageturnaround times in working days from the

Registers of Scotland are as follows:

Sasine Writs16 working days

with a maximum of 24 days for the latest County

Unattached Dealings with Whole*

15 working days

with a maximum of 25 days for the latest County* An unattached Dealing with Whole is a dealing which is not dependenton the processing of a prior First Registration,Transfer of Part or Dealing

with Whole for its completion.

The published Agency turnaround times for the Land Register is anattempt to capture the elapsed time that an application is in the

Keeper’s hands and is capable of being processed by his staff.The onlyperiod of time not included in the turnaround time measurement isthat time where a requisition has been raised with the submitting

agent.Turnaround times are calculated at the point where the finishedLand Certificate is despatched to the Agent. For obvious reasons

Saturdays and Sundays are not included in the measurement taken.

The turnaround time in the Sasine Register is purely the elapsed time (once again withoutSaturdays and Sundays) as writs which are withdrawn during the recording process are

excluded from the turnaround time calculation.

Many solicitors are unhappy at the Executive’s decision to make theseller’s survey a compulsory feature of residential conveyancingtransactions. IAN FERGUSON explains his opposition to the proposal


ADAIRS, Dumbarton intimate thatBrian Campbell Adair retired as apartner of the firm with effect from30 April 2005 but continues to beassociated with the firm as aconsultant.

AITKEN NAIRN,WS, Edinburgh arepleased to announce theappointment of James Doherty asan associate of the firm with effectfrom 1 May 2005.

BEVERIDGE PHILP & ROSS,Edinburgh are pleased to announcethe appointment of AileenAnderson Venables as a partner ofthe firm on 1 April 2005.

W & A S BRUCE, Dunfermline,Kirkcaldy and Burntisland aredelighted to announce that theirassociates, Peter Denis McDevitt andMichele Louise Renton have bothbeen assumed as partners of the firmwith effect from 1 May 2005.

DIGBY BROWN, Glasgow,Edinburgh, Dundee and Glenrothesare pleased to intimate that RhoddyStewart and Fraser Simpson wereassumed as partners and Dr IonaBrown and Trish McFadden wereappointed associates, all with effectfrom 1 May 2005.

DRUMMOND COOK &MACKINTOSH, St Andrews,Anstruther and Cupar, intimate theretiral of Paul Denholm with effectfrom 30 September 2004 andDougal Balfour Scrimgeour, witheffect from 31 March 2005. Bothcontinue as consultants.

FAULDS GIBSON & KENNEDYLIMITED, Glasgow announce thatfollowing the sale of their existingoffices for redevelopment they havemoved to 3 Royal Exchange Court,85 Queen Street, Glasgow G1 3DP.All other particulars remainunchanged.

Ian Kennedy WS, 13 Great KingStreet, Edinburgh EH3 6QW,intimates that, with effect from 1

June 2005, he has retired fromgeneral practice. He continues totrade as IAN KENNEDY WS but,after 1 June 2005, he isconcentrating on his employmentlaw practice and human resourcesconsultancy as well as hismembership of the legal panel ofthe Mental Health Tribunal forScotland. Ian Kennedy is operatinghis new practice from Glebe End,23 Cramond Glebe Road, CramondVillage, Edinburgh EH4 6NT (tel0131 336 1619). Ian Kennedy’sgeneral practice has been acquiredby DAVIDSONS, 4A Brunton Place,Edinburgh EH7 5EG, to whom allenquiries should be directed.DAVIDSONS have taken custody ofIAN KENNEDY’S client papers, files,archives, wills and title deeds.DAVIDSONS have also takencustody of the client papers, files,archives, wills and title deeds ofCRIGGIE & CO,WS, which wereacquired by IAN KENNEDY inMarch 2004. DAVIDSONS’telephone number is 0131 5589999 and their fax number 0131557 3139.The principal ofDAVIDSONS is Iain Haigh WS. IanKennedy is acting as a consultant toDAVIDSONS until 2008.

LEFEVRE LITIGATION,Aberdeenand Edinburgh are delighted toannounce with effect from 1 April2005, Valerie Sandra Roberts andMartin Turner Sinclair have beenassumed as partners of the firm.

McGRADE & CO have movedpremises to Standard Buildings, 94Hope Street, Glasgow G2 6QB.Thetelephone number is 0141 2214488.The fax number is 0141 2213200.

THE McKINSTRY COMPANY,Ayr,has pleasure in announcing to theprofession that it has acquired thepractice of GARDINER & NOBLE,25 Barns Street,Ayr.The practicename with effect from 6 April isTHE McKINSTRY COMPANY

incorporating GARDINER &NOBLE.A full range of legalservices continues to be offeredfrom the Barns Street office, whichis under the day to dayresponsibility of the residentsolicitor, Thiona Anne McQuiston,an associate at THE McKINSTRYCOMPANY (tel 01292 267956; fax01292 611636).The firm has furtherpleasure in confirming that IanGardiner continues to be associatedwith the firm as a consultant.

MORISON & SMITH, Lanark andCarluke are pleased to announcethe appointment of Kim Dunlop asan associate of the firm with effectfrom 1 June 2005.

MUNRO & NOBLE, Inverness arepleased to intimate that IreneWalker and Iain McDonaldbecame associates on 2 May 2005.Irene, who joined the firm as atrainee, is a member of theCommercial Department and Iain,who joined the firm as a qualifiedassistant in 2004, is a member ofthe Conveyancing Department.

PETERKINS,Aberdeen, Glasgow andInverurie intimate the retiral of FionaAgnes Bowman from the partnershipwith effect from 30 April 2005. MrsBowman continues to have a rolewith the firm as a consultant witheffect from 1 May 2005.

Flight Lieutenant Allan Steele RAFof the DIRECTORATE OF LEGALSERVICES (RAF) has been selectedto join the ROYAL AUSTRALIANAIR FORCE on a tour of detachedduty as part of an exchangeprogramme between the UnitedKingdom and Australia.Allan will belargely based in Sydney.

THORNTONS LAW LLP, Dundeeare pleased to announce with effectfrom 1 June 2005, the merger oftheir business with W R SCOTT &SOUTAR, Dundee, and theassumption of Malcolm RobertPirie Farquhar and David Ian

Mathieson, as members ofTHORNTONS LAW LLP. Thepractice will continue to operateunder the name of THORNTONSLAW LLP from offices in Arbroath,Dundee, Edinburgh, Forfar andPerth. John Robertson Scott of WR SCOTT & SOUTAR is to take upa consultancy with THORNTONSLAW LLP.The practice is alsopleased to announce theassumption as members of ClareSusan Macpherson, GordonGraham McBean and Noele GillianMcClelland with effect from 1 June2005. David Logan Laird retired asa consultant with the practice witheffect from 1 June 2005.

TURNBULL, SIMSON &STURROCK,WS, Jedburgh arepleased to intimate that with effectfrom 1 May 2005, David GordonRamsay Soeder has been assumedas a partner of the firm.

WARDLAW STEPHENSONALLAN, 28 Albany Street, Edinburghand 53 Market Street, Galashiels,intimate that with effect from 6 May2005, James Patrick Stephensonresigned from the partnership.Theremaining partners continue topractise under the name ofWARDLAW STEPHENSONALLAN at their current offices.

WINCHESTERS, formerly at 71Station Road, Ellon,Aberdeenshireintimate that they have relocated to57 Station Road, Ellon,Aberdeenshire AB41 9AR.Thetelephone and fax numbers, emailand LP numbers remain unchanged.

people


Intimations for the people section should be sent to ››Denise Robertson, Record Dept, Law Societyof Scotland, 26 Drumsheugh Gardens,Edinburgh EH3 7YRe: [email protected]

Photographs ofpeople featured canbe sent toThe Journal, Studio 2001,Mile End, PaisleyPA1 1JS



notifications

AKBAR, Nahid, LLB,DipLP

CASEY, Juliette Mary,BCL(HONS),

LLB(HONS), PhD, DipLP

CHAM, Jennifer,

LLB(HONS), DipLP

COOPER, GordonAlexander, LLB(HONS),DipLP

FORSYTH,Andrew

Campbell, LLB(HONS),DipLP

FULTON, John Paul, LLB,DipLP

McNALLY, MoragMargaret, LLB, DipLP

RUSSELL, Susan Gladys,BA, LLB, DipLP

APPLICATIONS FOR ADMISSION APRIL/MAY 2005

ENTRANCE CERTIFICATES ISSUEDDURING APRIL/MAY 2005ANDERSON, Lindsey Jane, LLB,DipLP

GREGOR, Laura Sian, LLB(HONS),DipL, Dip LP


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