Meeting a crisis: Society Remote courts: : another take volunteers step up is England doing better? on recent cases P.14 P.20 P.24

Journal of the of Volume 65 Number 5 – May 2020

Leader for hard times Incoming President Amanda Millar knows she faces a tough job, but believes in seeking opportunities even in these challenging months Coming Soon from W. Green

Company Law 5th Edition Nicholas Grier

The fifth edition of this highly respected text continues to offer essential guidance and understanding to law students in addition to those studying the related subjects of accountancy, business management and banking. By highlighting the key areas on which practitioners advise clients, Company Law is also invaluable to professionals who are ISBN: 9780414071780 seeking a clear, logical and concise guide to company law in Scotland. July 2020 £40

Public Law 4th Edition Paul Reid

This fourth edition of provides comprehensive, up-to-date and accessible coverage of the key areas of Scottish public law. It is the ideal text for students, legal practitioners and those working in the public sphere. Scotland is going through a period of vast constitutional change and this fully revised text will cover recent events such ISBN: 9780414060524 as the 2016 Scottish General Election and the EU Referendum. August 2020 £40

Annotated Rules of the 2020–21

Taken from the respected Parliament House Book, Greens legislative reprints are a series of titles designed to provide the Scots and student with collections of statutes and subordinate legislation in key subject areas of .

ISBN: 9780414075511 April 2020 £156 PLACE YOUR ORDER TODAY sweetandmaxwell.co.uk | +44 (0)345 600 9355 Publishers The Atria One, 144 Morrison Street, Editor EH3 8EX t: 0131 226 7411 f: 0131 225 2934 Email > [email protected] e: [email protected] Read > www.lawscot.org.uk/news-and-events/blogs-opinions/ Follow > twitter.com/jlsed President: John Mulholland Vice President: Amanda Millar Chief Executive: Lorna Jack A new era Online resources www.lawscot.org.uk Hello from somewhere behind your screen. There is a clear onus on employers in the www.journalonline.co.uk Yes, I know many of you like to pick up legal sector, as in every other, to respect www.lawscotjobs.co.uk your paper magazine as a break from the individual employees’ vulnerabilities and Subscriptions online world, but this month’s edition of the needs as they seek to open up again. Since Practising Certificate (inclusive cost) £680; Journal is another sign of our very much in most cases those who still have work Non-Practising Members (UK and Overseas, altered reality. It too is affected by the have been able to operate from home, that inclusive cost) £315; Annual subscription UK £84; shutdown, and this is our way of trying to really should not cause a major issue. Overseas £108; Trainees Free keep delivering the regular content. The shock to the economy will be felt Editorial have been hit hard. The for a long time to come, and I do wonder Connect Publications (Scotland) Ltd Society’s widely welcomed £2.2 million how conventional thinking can deal with Editor: Peter Nicholson: 0131 561 0028 support package for the profession comes the scale of Government borrowing and e: [email protected] in response, it states, to 90% of firms support that already has been and Advertising: Elliot Whitehead: 0131 561 0021 facing reduced turnover (some will continue to be required. It is e: [email protected] very severely reduced), and not a good sign that ministers Review editor: David J Dickson almost a quarter of solicitors have begun to speak in Online legal news: in private practice having terms of furloughed workers e: [email protected] been furloughed. Such becoming “addicted” to their Other Connect Publications contacts, figures, sadly, must mean status. How can a free market telephone 0141 560 plus: real distress and financial operate in what will remain a Head of design: James Cargill (3030) hardship for many readers. significantly unfree society while [email protected] Despite the daily discussions of restrictions continue? Editorial board when and how the lockdown will begin to An enlightened approach might Austin Lafferty, Lafferty Law be lifted, it seems unlikely that we will see recognise an opportunity to rethink the Andrew Todd, Springfield Properties Plc full resumption of business life for some whole system of support offered by our Philip Hannay, Cloch Solicitors weeks if not months yet, or that when we society for those in need, as happened David Bryson, Baillie Gifford Ayla Iridag, Clyde & Co do, there will be any early return to the following the ultimate World War 2 Kate Gillies, LLP level of activity of that age BC (Before victory whose anniversary we celebrate COVID) just a couple of months ago. this month. It might consider how those Cover image How are we to travel to work safely? economic, social and cultural rights that © Next 100 Years Share a room, or office facilities, safely? have to date remained on the margins Meet clients, or go to court safely? So of our legal order could be given more many questions, reflected across virtually substance. These are admittedly very big Disclaimer all types of business, have to be answered questions. But the beginning of a new The views expressed in the Journal of the Law Society of Scotland are those of invited contributors before our freedoms can be restored, and era, which is where I believe we could be, and not necessarily those of the Law Society of I haven’t even mentioned our social lives. should be the time to address them. Scotland. The Law Society of Scotland does not endorse any goods or services advertised, nor any claims or representations made in any advertisement, in the Journal and accepts no liability to any person for loss or damage suffered as a consequence of their responding to, or placing reliance upon any claim or representation made in, any advertisement appearing in the Journal. Readers should make appropriate enquiries and satisfy themselves be fore responding to any such advertisement, or placing reliance upon any such claim or representation. By so responding, Contributors or placing reliance, readers accept that they do so at their own risk. On no account may any part of this If you would like to contribute to Scotland’s most widely read and respected publication be reproduced without the written permission of the copyholder and publisher, legal publication please email: [email protected] application for which should be made to the publisher.

© The Law Society of Scotland, 2020 Naomi Elizabeth David Rachael Howard League ISSN: 0458-8711 Pryde Rimmer Johnston QC Bicknell Scotland Total Net Circulation: 13,689 is head of is chief is an is founder is an (issue specific May 19) Commercial executive of with Axiom and director independent Av. Net Circulation: 13,628 (Jul 18 - Jun 19) Litigation in LawCare of Squaring Scottish charity Scotland with Circles working for DWF LLP prisoners’ rights

May 2020 \ 3 THE JOURNAL OF THE LAW SOCIETY OF SCOTLAND VOL.65 NO.5 – MAY 2020

Perspectives Features Briefings In practice

04 Journal online 12 28 Civil court 38 Professional news Our website exclusives for May Interview: incoming President Roundup, including reporting Support package; SLCC levy; Amanda Millar on the crisis restrictions virtual AGM; AML; policy work 05 Guest view Alison Edmondson 29 Employment 40 VE Day reflections 14 Update on furlough A reminder that can 06 Letters How the Society’s committees work for good, or evil Scullion’s update; Reviews answered the COVID-19 call 31 Family Proposals for OPG related work 41 Videoconferencing 07 Offbeat 17 It is now a must-have, but how Quirky news; Profile column 31 Human rights An update on special practice do we operate it securely? COVID-19 restrictions on liberty 08 President measures to help in the crisis 42 Annual report Helping the profession survive 32 Pensions Headlines from, and comments Furlough and contributions 20 on, the 2018-19 practice year The Scottish and English Regulars 34 Property courts’ reactions compared 44 Risk management Digital signatures; PSG work Two illustrations of why fraud 10 People 22 36 In-house warnings must continue 33 Consultations Report on the latest virtual LawCare on kindness, the 46 Homeworking 38 Notifications round tables theme of Mental Health Week Benefits of keeping it going after 45 Archive the shutdown 49 Classified 37 Discipline Tribunal 24 Two recent cases 50 Recruitment Prescription: David Johnston’s 47 The Word of Gold take on recent decisions COVID-19: a spark for previously resisted cultural change 26 The Society's 48 Appreciation ODR: has its time arrived? 2018-19 annual Peter Millar OBE, WS report – key points: 27 Page 42 49 Ask Ash The Howard League speaks No peace working from home out for prisoners at this time

ONLINE INSIGHT

PUBLISHED ONLY ON WWW.LAWSCOT.ORG.UK/MEMBERS/JOURNAL/

An access to justice COVID-19 and Brexit: Liquidators’ Unsigned, unsealed, Tradecraft: some success story? a two-way effect remuneration: undelivered? executry points Iain Nicol welcomes the Underlying the COVID-19 a tale of two reporters Kyle Dalziel calls for In a further article coming into force of the situation is the question Stuart Clubb hopes that urgent clarification covering “tradecraft” Success Fee Agreement whether to extend the reporters examining of Home Office matters of etiquette and Regulations but, in this Brexit transition period. liquidators’ accounts policy regarding the how to avoid blunders, commentary, highlights But the end of that period will take note of a recent requirements for Ashley Swanson recalls that the legislation could also impact on court judgment, mandates to act for some situations that contains a lot of detail the UK’s ability to tackle and keep more closely asylum-seeking clients have arisen in wills and to master. future waves of infection, to their proper role during the COVID-19 executry practice. Peter Sellar believes. than is sometimes lockdown, and some seen in practice. fairness in its approach.

4 / May 2020 OPINION Alison Edmondson Does the comparative slowness with which Scottish courts moved towards remote hearings indicate an attitude in government that courts are not an essential service? If so, the difficulties arising from the lockdown provide a platform for citizens’ education to the contrary

xtraordinarily, Scotland’s citizens currently find to the least powerful members of society. Yet those working in themselves without full access to civil justice. the court system are not widely esteemed as daily participants in Following lockdown on 22 March all civil court preserving our peaceful freedoms. We hear very little inspirational E business was suspended. There appeared to be rhetoric about the value of our courts in our national discourse. little momentum to reinstate any form of civil Lord Reed expresses the point in R (UNISON) v Lord Chancellor justice until energetic representations were made [2017] UKSC 51: “At the heart of the concept of the rule of law is the by the Law Society of Scotland and to the idea that society is governed by law. Parliament exists primarily in Scottish Courts & Tribunals Service. SCTS initially emphasised the order to make laws for society in this country... Courts exist in order complexity of change and the need for patience. Since then SCTS to ensure that the laws made by Parliament, and the common law has published plans for the staged resumption of some types of created by the courts themselves, business. Access to civil justice remains severely curtailed. This are applied and enforced... In raises two questions. order for the courts to perform First, why has it taken so long to achieve even limited that role, people must in principle resumption of court services? Before I answer, let me say have unimpeded access to them. that SCTS is right to be approaching matters carefully. Without such access, laws are It does not want to expose its staff to unnecessary health risk. liable to become a dead letter, the Remote hearings cannot easily replicate parole evidence. work done by Parliament may SCTS digitalisation has been underresourced. Not all citizens are be rendered nugatory, and the digitally included. The efficient administration of remote justice democratic election of Members sits uneasily with the needs of vulnerable litigants. These are of Parliament may become a complex considerations. Nevertheless, court services in other meaningless charade. That is why jurisdictions have moved more swiftly to a more comprehensive the courts do not merely provide a reintroduction of business. The “why” remains. public service like any other.” I think we were recently given the answer to this underlying It was evident in the commotion “why” in a different context. Ben Christman and Malcolm Combe surrounding the Miller and Cherry critiqued the funding policies for the court service in a paper cases last year that understanding summarised at Journal, February 2020, 5. They highlight that the of the rule of law, the separation believes that litigants receive the majority of of powers, and the functioning of our parliamentary democracy the benefits of litigation, viewing civil justice as a private dispute is largely confined to a small cohort of lawyers and political resolution service. A cultural perception that civil courts are merely enthusiasts. This gap in our collective social consciousness a consumer product might go some way to explaining the current is dangerous: it leads us to complacency or disregard for the approach. Organisational culture affects outcomes, and the current structures that sustain our democracy. But this space is something situation suggests an immediate need for rapid recalibration. we as a profession can fill, collectively and individually. Lord Reed’s As Christman and Combe point out, “civil justice is not a product characterisation of the courts is a big, positive vision that we can for an informed consumer to choose at will: it is a constitutional communicate. That communication ought, I suggest, to take place in fundamental and a human right”. Indeed, access to civil justice everyday conversation, in the media, on social media and perhaps is such an important part of the fabric of a functioning society also in a form of citizens’ education on these matters, included in that article 6(1) of the European Convention on Human Rights the school curriculum. recognises a “right to court” to assert civil rights. People don’t use courts because they want to: they use courts This brings me to the second question: why is concern about because they need to. We should use the temporary suspension of the (hopefully temporary) curtailment of this constitutional civil justice to inspire wider appreciation of its worth. fundamental confined to the legal profession? Courts matter in peaceful society. There is a compelling social imperative to maintain the administration of civil justice. It often matters most Alison Edmondson is a director with SKO Specialists

May 2020 \ 5 CORRESPONDENCE BOOK REVIEWS

A good news update A Practical Guide to Public Law Litigation in Scotland

I am grateful to all the It’s been really difficult. I don’t have DRUMMOND, MCCARTNEY AND POOLE readers who contacted me all the answers; nobody does, but I W GREEN I after my article was am so very grateful to our team and ISBN: 978-0414065239; £59 published in the April promise that we will work hard to This slim volume demonstrates Journal (at 13). bring them back into the business as why print publication of legal texts Since I came out of hospital at the soon as we can. should survive in this digital age. beginning of April, my story has also Had we put the business on to Where better to find discussion been covered in several local papers furlough in March, none of this would of the practical application of the and the Glasgow Evening Times. I have have happened. Time will tell whether rules and authorities than in a been inundated with kind wishes and this approach has been the right convenient volume? nice messages from other lawyers, one, but from where I’m sitting, I am Notwithstanding its title, the friends, acquaintances and people pleased that we did it this way. text focuses primarily on judicial whom I hardly know. It has truly been Now back to my time in hospital. review. There is a chapter on humbling. I received such good care and as our funding, including legal aid and, I am happy to say that I am way of saying thank you, we have topically, protective expenses orders. Discussion of the now recovering well at home from launched a free will promotion which substance of judicial review is a useful summary, even if suspected COVID-19. I have been really is available to anyone who works for fuller analysis can be found elsewhere. More valuable well cared for by my husband, Antonio. the NHS or is a carer. still are the chapters which follow. There are particularly Every day I am getting better, stronger We have also partnered with Marie useful discussions of innovations such as time limits, and and I have now returned to work. Curie for the sixth consecutive year to permission to proceed. I would like also to update readers write free wills for anyone who is over The view of experienced practitioners on what is likely on how we got on with the various 18 and considers leaving a legacy to to happen at the hearings is the type of topic unlikely projects and plans I outlined in the Marie Curie in their will. to be found elsewhere, and a concluding miscellany of article. As I write, the promotion only issues may well assist when something not envisaged Our team has been amazing. We launched three days ago and so far we crops up. A useful appendix includes a style of petition managed to complete many of the have had 75 enquiries. and of answers. projects that I set out in the article. We are embracing all the new For succinctness it is not possible to improve on this We have reviewed and archived technologies to allow us to do this summary by the writer of the foreword, no less than Lord nearly 2,000 files; we have audited entirely remotely, and the promotion is Carloway: an “excellent exploration of the subject from a and updated processes, and revised bringing a lot of positivity and energy highly realistic viewpoint”. our styles; we have dealt with historic at a much needed time. R Craig Connal QC, . For a fuller review see problem files, ingathered debts, It is really important to give bit.ly/35EQZ73 negotiated payment extensions with something back and I hope that in a suppliers and, really critically, we have small way, Scullion LAW are doing billed and recovered 50% of our usual our bit. It’s been heartening to read of Toffee monthly turnover (with a week to go). other acts of kindness from within the SARAH CROSSAN We managed to hold on to our full legal profession as we support our BLOOMSBURY: £7.99; E-BOOK £2.19 team without anyone going on to communities. I pray that we all stay furlough until Easter. safe, well and that this ends soon. “Written in verse,... Toffee... is a Since then, we have begun to Please spread the word about compelling story, relevant equally furlough. We analyse our data our free will promotion – details at to teens, adults, parents and those to determine who and when. The scullionlaw.com / 0141 374 2121. with older parents.” team has been really brilliant at Many thanks. This month’s leisure selection is at understanding and accepting that we bit.ly/35EQZ73 are doing all we can for the benefit of The review editor is David J Dickson the business, which in turn will benefit Nicholas Scullion, managing director, all of us. Scullion LAW

BLOG OF THE MONTH thesecretbarrister.com Virtual court hearings are in demand, and like there is a barrier to communication”. She probably essential in our present situation, sums up: “Stripped bare of human interaction, I but do they lack something? have found the job unrecognisable.” In this guest blog a barrister describes a Look out also for the link to a family judge’s hearing before a judge, for a client she has blog about their experience. never met, and tries to “pinpoint why it feels To find this blog, go to bit.ly/2WwoofX

6 / May 2020 Hit the paws button WORLD WIDE WEIRD 1 Back to those work video meetings from home, and this time it’s Fowl move the animals’ turn. Especially the dogs. Well, they do have this City authorities in Lund, Sweden, habit of barking. But, as Twitter users like to caption photos of are spreading a tonne of chicken their cute faces, “But how else will your colleagues know there’s manure in a park to discourage a squirrel outside?” people from gathering to celebrate More underhand is to provoke the human into making the the spring festival Valborg during noise. “My favourite trick is making my human yelp in the middle the COVID-19 pandemic. of a meeting by nibbling his calf with my puppy (needle sharp) bit.ly/35xsQQg teeth,” indicates a worryingly devious mind at such a young age. “I heard a car engine and it might be someone I love” is the 2 sort of optimism we could all do with at this time. Betting the house And yes, we know they can swing everything your way when The Quebec Court of Appeal they manage to get on screen. Or maybe a cat is the answer. has cancelled a mortgage over Check this from Australian author Christopher Ruz: “DO NOT a house, granted in favour APOLOGISE WHEN YOUR PETS JUMP INTO THE FRAME ON of his opponent by a man ZOOM CALLS. Was just in a conference with the CEOs of a major who incurred a gambling debt US org and Muffin jumped on my lap and the whole conversation of $517,000 in three games stopped, IS THAT A CAT, SHOW ME THE CAT! Everyone needs of rock-paper-scissors. cats in these trying times.” bit.ly/3frbiZZ

PROFILE

3 Phil Yelland Slippery customer The Law Society of Scotland’s Executive Director of Regulation, Phil Yelland, It took a 5-4 majority decision talks to us as he looks forward to retirement after 30 years at the Society of the Washington Supreme Court to find that a woman who stole a snowmobile was guilty of “theft e Why did you decide to join the Society? into regulation, and on a couple of occasions of a motor vehicle” in terms I joined the Society from private practice because I representing the Society at events abroad. I was of the relevant statute in that state. was looking for a change. My skills seemed to point proud that last year we brought the International bit.ly/2W40WHY me towards applying for a job in what was then the Conference of Legal Regulators to Edinburgh.

Complaints Department. There were three of us in TECH OF THE MONTH those days dealing with around 350 complaints u How do you plan to spend your each, and the decisions were made by Council. retirement, and what will you miss Down Dog about the Society? iOS, Android – free r What are the biggest changes you I am not going to sit and do nothing. I hope to (membership have seen at the Society over the years? use my knowledge to help others in some way. available) The biggest physical change was the move from Looking after grandchildren will also feature, If you’re confined Drumsheugh Gardens to Atria One, a change for the as will being involved in cricket to the house, better despite Drumsheugh’s history. But perhaps administration and coaching, and a colleague the biggest change came when Lorna Jack arrived I hope to travel more. recommends this – the first non- chief executive, bringing very I will miss not just the for yoga (beginners different ideas from her perspectives in business. people I have worked with and pre-natal are daily, but also the many options), to relieve t What have been the highlights Council and committee any working from for you personally? members I have met down the home aches and pains – but ballet I have worked with and met a lot of really years. and high intensity workouts are interesting and fantastic people. I guess the available too. highlights – not sure everyone would say this – Go to bit.ly/35EQZ73 downdogapp.com are being involved in two parliamentary enquiries for the full interview

May 2020 \ 7 PRESIDENT John Mulholland These are difficult times in which to hand over the presidency, but I am heartened by the way the Society and the profession have faced the COVID-19 crisis and I am confident that as a profession we will pull through

wish you the warmest welcome to my our partners in the legal system has in no small measure helped last column as President. I would have find an interim solution to the conveyancing crisis and to restart said that I am writing with a tinge of court business. We must continue to work in this positive way. sadness, but I don’t think now is the We recognise that worrying about our family and businesses time for a lot of personal reflections on and the isolation that lockdown has brought will have an impact the last year. As we approach the on our mental health. We hope the work the Society started in I presidential handover, I would like to partnership with See Me, the national programme to end mental look ahead with as much optimism as health stigma and discrimination, will help with that. We will the situation allows. continue to invest in and develop our Lawscot Wellbeing offering We are confident that the financial package announced in response in the coming months. We have been looking out for at the end of April will help to alleviate some of the financial each other during this difficult time, and I hope that will continue. pressure paying your professional fees might bring at this time. We thought very hard about the best solution. We know our We will survive members face a sharp and significant downturn across many Finally, on a personal level I wish I was handing over the reins areas of practice and this has a direct and immediate effect on to Amanda Millar in happier times. However the leadership of the financial viability of businesses. We took the decision at the our Society and profession very start of lockdown that, as a membership organisation, to is in the safest hands. I know do nothing was simply not an option. We have taken a series Amanda will adeptly navigate of tough financial decisions to attempt to provide a measure of our exit from lockdown support for our members across the profession. The package and beyond. was measured and proportionate, and as a whole sought to I do wish to say a very provide support to different sections of our profession. special thank you to our The decisions were not easy. They have implications for the chief executive Lorna Jack, Society and all of us. A number of different opinions were voiced the Senior Leadership team, at all stages of the discussion. The views were expressed with Council and committee an understanding of the seriousness of the situation but with members and all the staff at the best interests of the Society and profession at their heart. the Society for keeping me The package was approved by an overwhelming majority of right and making my term Council, who represent the many and diverse interests of the as President such an honour profession. We encouraged comment from and dialogue with and a privilege. I have been our members and we have answered the questions which have humbled by the amount of been posed about the thinking behind our proposals. work that is done for us that The decision to provide a holiday from the client protection we rarely get to see. fund contribution was challenging. However, we are in no doubt The final thank you of course must be to you, the members that given the extremely healthy reserves held by the fund, we of the profession, who have provided invaluable support and are easily in a position to provide the same level of protection encouragement to me throughout the year. It is impossible to that our clients have always enjoyed. express adequately how important that has been, especially in the most recent weeks. I have no doubt that we will continue Taking solutions forward to be a thriving, varied and independent profession whatever I am certain that during May, measures will be announced challenges we are faced with. I hope that you stay safe and well which will signal the easing of lockdown and a return to work. and wish you every continued success. We should take forward the new ways of working that we have had to adopt in the past months. As always the profession has embraced these new ways of working and has been proactive in seeking solutions to the problems we have encountered. Our John Mulholland is President of the Law Society of Scotland – willingness to work collaboratively with the Government and [email protected] Twitter: @JohnMMulholland

8 / May 2020

Intimations for the People section should be sent to [email protected] To advertise here, contact Elliot Whitehead on 0131 561 0021; People on the move [email protected]

Sir Crispin Agnew of Lochnaw QC has retired from practice after 38 years at the Scottish bar.

ANDERSON STRATHERN, Edinburgh, Glasgow and Haddington, has announced the appointment as a partner of Siobhan McGuigan, who joins from BLACKADDERS to head the Private Client team in the firm’s Glasgow office.

BELLWETHER GREEN, Glasgow, has appointed as a consultant Emily Wiewiorka, a commercial , IP and data lawyer who is returning to private practice after BTO Solicitors LLP working in-house, then running her own business and maintaining part time advisory roles with qualified employment lawyer office, he joins from MORTON paralegal specialising in residential various tech companies. Katie Russell as a partner in its FRASER, where he was a partner. conveyancing, has joined from Edinburgh office. She joins from BLACKADDERS. Megan Joiner has LLP, Edinburgh, Glasgow SHEPHERD & WEDDERBURN, WS, Edinburgh left the firm. and Aberdeen, has announced the where she was a partner. and London intimates that, with retirement of partner Julian Voge effect from 26 April 2020, Fiona LEDINGHAM (corporate and commercial), and CLYDE & CO, Moira Akers retired as partner of CHALMERS, consultant Andrew Dalgleish (tax Edinburgh the firm and that, with effect from Aberdeen, and trusts), who have each served and globally, 27 April 2020, Craig Davidson Bridge of Don, for more than 35 years with announce the Roberts was assumed as partner Inverness, Stirling the firm. Brodies has appointed retirement of of the firm. and Edinburgh, has Jennifer Matthews as an associate Gordon Keyden, appointed agricultural and rural in the Contentious Construction senior equity partner in Scotland, Russell Eadie, solicitor and lawyer Gary Webster as a partner team, based in the Edinburgh after over 40 years of service. He experienced employment in its Inverness office. He joins office. She joins from ABERDEIN was managing partner of SIMPSON lawyer, has joined NAVIGATOR from MACLEOD & MACCALLUM, CONSIDINE. & MARWICK from 2012 to 2016, EMPLOYMENT LAW, Edinburgh where he was a director. and played a key role in the merger from RRADAR SCOTLAND LTD. The firm has also announced BTO SOLICITORS LLP has with Clyde & Co in 2015. He now two promotions in its Aberdeen announced the promotion of takes on a role as consultant. JAMESON + MACKAY, Perth & headquarters: Emma Somerville four senior associates and two Auchterarder has incorporated of the Family Law team to senior associates, from 1 April 2020. The CONNELL & CONNELL, WS, as JAMESON + MACKAY LLP associate, and Dara Kinloch of the new senior associates are Emma Edinburgh is delighted to announce with effect from 1 April 2020. Private Client team to associate, Barclay (Corporate team, Glasgow), the appointment of Richard Murray Also with effect from that date, both effective 1 April 2020. Debbie Reekie, a as a partner in its Private Client Robin Stewart Watt retired as a and accredited specialist in family team. Richard joins from TC YOUNG partner and the firm is delighted LEFEVRES, Edinburgh, Glasgow law (Edinburgh), and Eileen LLP, Glasgow and Edinburgh, to announce that Jennifer and Aberdeen has appointed Sherry and Mark Hastings, both where he was a partner. Kirkwood became a member. The personal injury solicitor Iain Nicol based in Glasgow in the Insurance members are Alison Ramsay, as a legal director. He moves from group. Promoted to associate are , Edinburgh, Glasgow, Stephen Inglis and Jennifer BALFOUR + MANSON, where he Jamie Robb (Professional Liability Aberdeen and globally, has Kirkwood. The firm is also was a partner. team, Edinburgh), and Rhona appointed Brian pleased to announce that Victoria McKerracher (Insurance group, Hutcheson as a Buchanan, an accredited specialist LEVY & McRAE Glasgow). partner in its in personal injury, has joined its SOLICITORS LLP UK Real Estate Court department from HARPER has appointed , Edinburgh practice. Based MACLEOD, and that Charlie Peter Anderson, and UK-wide, has appointed dual in the Glasgow McCall, a registered conveyancing one of Scotland’s

10 / May 2020 most experienced commercial 1 May 2020. The newly assumed litigation lawyers. He joins from partners are , and specialist Lauren Thomson and was formerly partner and senior corporate finance specialist partner at SIMPSON & MARWICK. John Morrison, while rising to legal director are Alison LINDSAYS, Edinburgh, Glasgow Rochester (head of the Trade and Dundee, has announced & Commerce team), Lucy Hall the following promotions: to (Banking & Finance team), Neil partner, Lauren Pasi (Personal Cowan (Banking & Finance team) Injury team) and Darren Leahy and employee share incentive (Commercial Property team); to specialist Gavin Charlton. senior associate, Sharon Drysdale (Rural team); and to associate, URQUHARTS, solicitors, Kirsty Preston (Private Client Shepherd & Wedderburn: Thomson, Morrison, Rochester, Hall, Cowan, Charlton Edinburgh, intimate that with department) and Julie Malone effect from 1 April 2020, Alison (Residential Property team). family law solicitor Megan Joiner, Banchory, has promoted Allan Grandison has joined the firm as a formerly of JAMESON & MACKAY. Mackenzie, a commercial property partner in its Residential Property MACLEOD & MACCALLUM lawyer based in Aberdeen, to department. She was previously LTD, Inverness, PINSENT MASONS, Edinburgh, associate. a senior associate with SIMPSON Invergordon Glasgow, Aberdeen and globally, & MARWICK. On the same date, and Portree, has promoted the following RAESIDE CHISHOLM, Glasgow James Baird became a consultant are delighted Scotland-based lawyers: to are delighted to announce the to the firm. to announce partner, Kathryn Wynn (data appointment of their senior the promotion protection, Edinburgh); and to legal conveyancing associate Claire WEIGHTMANS, Glasgow, of their associate director, Rachel Warner (upstream Reid as a director, with effect from Edinburgh and UK-wide, has Scott Dallas to director, heading oil and gas projects) and Fiona 1 April 2020. opened a new private client their Private Client Department, Kindness (corporate finance), both practice in Scotland with the from 1 April 2020. in Aberdeen. SHEPHERD & WEDDERBURN LLP, appointment of family law Edinburgh, Glasgow, Aberdeen specialist Noel Ferry to MACNABS, Perth, Blairgowrie, RAEBURN CHRISTIE CLARK and London, has promoted two of its Glasgow team. He joins Pitlochry and Auchterarder, has & WALLACE, Aberdeen, Ellon, its lawyers to partner and four to as a partner from TURCAN announced the appointment of Inverurie, Stonehaven and legal director, effective CONNELL.

This is a very difficult and strange time for everyone, however the world has to gradually get moving again and tasks have to be completed. At ECS we are still operating at maximum capacity to provide support for the legal profession; investigating all types of executry and tracing cases, in our customary sensitive and professional manner. To our many clients and their families, please stay safe. When work needs to be done, we are still here whenever you need us.

Alan Eadie, Managing Director, Eadie Corporate Solutions Ltd

Visit our new website for more details about our services: www.eadiecs.co.uk 91 New Street, Musselburgh, EH21 6DG TEL: 0131 653 2716 | MOB: 0791 3060908 | Email: [email protected]

May 2020 \ 11 INTERVIEW

Challenge of a lifetime Amanda Millar has a perhaps unenviable task in becoming President of the Law Society of Scotland this month, but she is determined not to be swept along by events, and to pursue the opportunities she believes exist even now WORDS: PETER NICHOLSON

ncoming Presidents of the Law acknowledging the challenges to the profession that’s very much the feeling I get. On the financial Society of Scotland have often, and doing what it can, and we will continue to do package, the level of active positivity that has with reason, spoken of the what we can. It is about maintaining the viability resulted is quite surprising: it’s a sign that I challenging times that lie of the legal profession, but also our ability to everybody acknowledges what is going on and ahead. None can have had regulate, promote, safeguard and meet all those the efforts that are being made, and that’s more reason to do so than statutory duties which we must not lose sight of.” really important.” Amanda Millar. The same applies to the volunteers on the With, to the Society’s knowledge, 90% of our Giving extra Society’s committees, many of whom have gone firms facing reduced turnover, and a quarter of Asked what it means for the Society, she replies the extra mile and more (see next feature) in solicitors in private practice on furlough, due to that the specifics are still being looked at, but working with Government and others to address coronavirus, she can fairly claim that the present while tough choices will have to be made, “what the challenges facing their particular sectors. time is “truly the challenge of a lifetime: one that we’ve delivered in the package is what we “They already take time out of their working lives people who are practising now will never have believe can be delivered at the moment”. The in average circumstances, and many of them encountered before”. Certainly it far exceeds even have taken even more time to deal with these the economic shock following the 2008 credit issues and provide the support necessary from crunch. “The circumstances here a legal perspective in developing the legislation As Vice President this past year, Millar has are unprecedented, but in these incredibly challenging times, when lots already seen a spread of events from the of these members are also looking to their own Society’s platinum anniversary celebrations, people are pulling family and firm responsibilities. to the “visibility issues around 100 years of together, that’s very “I’m overwhelmed by the level of step up women in law” (a cause close to her heart), to to the plate that’s coming from many of our working alongside President John Mulholland on much the feeling I get” members in relation to the challenges to be faced emergency support measures as the COVID-19 and their willingness to help everybody meet crisis unfolded. Society has furloughed some staff, and all CPD these as far as possible. And it’s a big privilege That last exercise has delivered a proposed events have been cancelled, but further choices for me to have the opportunity to represent such 20% cut in the next practising certificate fee and will have to follow. a fantastic group of people, both solicitors and accounts fee, plus a zero client protection fund She does believe, however, that the crisis has also the lay members for the contributions that contribution. “As is invariably the way, you do brought the profession together in the effort to they make.” get mixed reviews but mostly it has gone down mitigate its effects. “The circumstances here are incredibly well,” Millar reports. “The Society is unprecedented, but people are pulling together; Particular concerns Millar declines to predict what professional life might look like once restrictions are lifted, except to say that there will be no going back to how A voice for the voiceless things were just a couple of months ago. “I don’t believe anybody, not just the legal profession, Amanda Millar has committed herself during six years on the Mental Health & Disability can go back to where we were in February – we her career to ensuring that the voices of Subcommittee. She steps down as convener of are going to have to deal with a new normal.” the underrepresented are heard. Initially the Rules, Waivers & Guidance Subcommittee It is clear, though, that much more is likely she taught subjects including social welfare on becoming President. Beyond the profession, to be done through technology. Millar has law at Strathclyde and Glasgow Caledonian she has given of her skills and experience to sat on the LawscotTech advisory board for Universities. In practice for 20 years as the third sector as an SCVO Policy Committee some two years (describing herself as “the a Perth-based litigator, she ultimately member, as board member and then chair of non-techie in the room”); its work will become specialised in mental health and adults with Mindspace Ltd, and as the first non-executive even more important in trying to develop incapacity, becoming the first solicitor to be chair of Changing the Chemistry, which focuses areas of technology relevant to the profession, accredited as a specialist in both these areas. on improving diversity of thought on boards. “and hopefully given the challenges we’ve First elected to Council in 2010, her She lives in Perthshire with her wife Joyce encountered there will be increasing engagement committee work includes seven years on the and their dog Darcy, and in her home life she of the profession in relation to that”. Client Protection Committee, two on the Audit enjoys cooking, eating and supporting At the same time she has a real concern, Committee, five on Professional Practice and Liverpool FC. as someone strongly committed to the role of lawyers and the rule of law in society, that basic

12 / May 2020 recommendation of the Roberton report for a new independent regulator, but as far as Millar is concerned the Society as regulator “will continue to meet the high standards and continue to develop in the time that I am in position as President”. She adds: “Those issues must be considered alongside the challenges that are being faced at the moment, both by members and by the public, and where the report gave no evidence of mischief to justify a need for an independent regulator there is a need for all to be flexible, think differently and improve how we respond to changes in the legal services market.” This year is also when the Leading Legal Excellence strategy concludes its five year term; what might succeed it may now be rather different from what would have been anticipated until recently. “That will continue to be reviewed given the very changed circumstances we find ourselves in,” Millar assures us. “As far as the principles are concerned, we’re obviously continuing to adhere to our existing strategy and work through that. I think it’s fair to say the work done by the Society since the lockdown is ongoing evidence of the desire, passion and delivery in relation to Leading Legal Excellence.”

Seeking the positives One thing she is determined the Society will not be doing is just responding to whatever events unfold. “There will be an element of that, but it will also be important from my perspective to continue to have active ongoing engagement, and that means not being caught on the back foot, as far as possible in circumstances as unpredictable as these. That’s part of the task of leading an organisation that is looking to lead legal excellence and meet responsibilities in relation to members, and also meet responsibilities in relation to promoting and safeguarding the interests of the public.” rights are not set aside in the desire to move on. to do with their own futures.” And even in our present situation there will “One particular difficulty is that when people are That said, it is also important to her to be seen be opportunities to be grasped. “While these dealing with emergencies, there is always the as someone who has been elected on merit. “The are really challenging, really difficult times risk that human rights or other protective issues reality is I have been elected by my peers to be for everybody, and we can’t underestimate are seen as less important, and we must be President of the Law Society of Scotland, and I the horrors in relation to what people have vigilant that the new normal does not get us to don’t believe that the people who elected me did experienced in this crisis, from every crisis there the point where rights that had been put in place so because I was going to fill a diversity box. will come both challenges and opportunities and protected are in any way lost or diminished.” I am confident having gone through a contested and it’s about being able to show the level of That applies with equal force to her desire to election that they believed I have the skills to flexibility and willingness to engage in all the see a profession that is as diverse and inclusive represent the Society to the best of my ability. conversations so that people come out the other as possible. As may be well known by now, Millar I have a range of diverse characteristics. There side in as positive a way as possible.” is the first from the LGBT+ community to assume isn’t anybody in the world who doesn’t.” She concludes: “As you’ll have gathered I’m the presidency, and while not wanting to be seen a fundamental believer in the rule of law, in as a “flag bearer”, she recognises the importance Drive to deliver the independence of the profession, and taking of being there as a role model. “At the present Looking to the Society’s more regular agenda, a crisis and seeing from that an opportunity, time I think this is even more important, because matters other than the pandemic will be waiting so my focus is about maintaining, it’s about we live in the reality that we still have many to be dealt with. This year may or may not see developing, it’s about leaving a legacy where young people who need role models to believe the Government’s consultation on the future people are able to continue to see the value that they can do what they are capable of doing regulation of the profession, following its attempt of a viable legal profession in a meaningful and to be their whole selves when deciding what to identify a consensual approach to the key civil society.”

May 2020 \ 13 CORONAVIRUS: SOCIETY

COVID-19: countering a crisis The Society’s committees have faced exceptional challenges in seeking ways to mitigate the effects of the COVID-19 lockdown. Peter Nicholson reports on some of the significant work undertaken, and continuing, to help practitioners

he business protection of human rights and of Property: digital changes during the various stages. effects of the the vulnerable. The Policy team solutions Since then it has worked very coronavirus responded with remarkable speed: Perhaps the most urgent closely with RoS on the proposals T shutdown are the Scottish bill was published on issues at the beginning of the for extended advance notices and severe, and will 31 March, and the Society had an shutdown faced the Property Law electronic submission, ensuring a become the more extensive briefing in the hands of Committee. Convener John Sinclair degree of co-ordination between so the longer this situation lasts. MSPs ahead of it being debated relates how the closure of the their respective sets of guidance. But without the emergency and passed on 1 April – a feat application record at Registers of Sinclair adds: “Over the last few legislation and other arrangements commented on favourably in the Scotland had a profound impact on years, our committee has been to cushion the initial blow, things chamber. solicitors in the process or on the used to working constructively would have been much worse for “The committee has been verge of settling transactions – and and openly with RoS in discussing many practitioners. keeping an eye on the fast paced of course their clients, some of many issues relating to registration. Law Society of Scotland staff introduction of legislation to deal whose panic-stricken pleas for help This meant that when RoS put and volunteer committee members with the pandemic, and providing quickly circulated online. forward their proposals for interim were heavily involved in many support where we can to the “Our response was to provide measures there were existing lines areas, and put in long hours working Policy team and the relevant immediate guidance to our of communication to allow for rapid with Government and public bodies subcommittees,” McLintock members, and to work with RoS discussion and bringing others, such to devise suitable measures. This confirms. “As ever, the Policy to find a way of allowing some as UK Finance, into the discussion. feature attempts to give a flavour of team have excelled in producing settlements to proceed,” he “There are still a number of what has been achieved to date, and timely work of fantastic insight and recalls. “The complexities came in areas where further solutions are priorities for the next phase of work. quality.” dealing with other stakeholders, required, including the current She adds that the committee’s particularly lenders (working inability to register a deed in the Public Policy first videoconference meeting through UK Finance), and putting Sasines Register, and so whilst a Committee: “worked brilliantly”, and given the the solutions in the context of the huge amount has been achieved, overview need for the Society to reduce costs wider Government guidance and the there is still further work required.” Convened by former President as part of its coronavirus response, priority to keep people safe.” He expects weekly calls with RoS Christine McLintock, the Public this will likely become the “new While the legislative remedies to continue, to discuss the closure Policy Committee has oversight normal”. were principally developed between of the application record, the of the Society’s specialist policy There remains other urgent work: RoS and Scottish Government, the operation of the interim measures, subcommittees and is responsible “Brexit continues as a pressing committee provided detailed input and further proposals to open up for policy development concerning issue, so policy subcommittees also into the draft bill, and discussed the functioning of the Land Register. law reform proposals. It coordinated continue to work hard on transition the response to the introduction at and post-transition issues. Work great speed of sweeping powers is under way to set up a Private to enable the UK and Scottish International Law Reference Group “Brexit continues as a pressing issue, Parliaments to deal with the to facilitate discussion and to so policy subcommittees also continue pandemic. explore solutions to cross-border The bills raised important issues issues arising during and after to work hard on transition and around legislative scrutiny, and transition.” post-transition issues”

14 / May 2020 For the future, as regards and paperwork in the closed courts also secured to allow written pleas The Society then set up a commercial and particularly building up a huge backlog, “It will triggering ABWOR, to allow another working group, including judiciary, lending transactions, Sinclair take weeks if not months to get agent to be instructed in a custody members from across the legal hopes that the new measures in back to ‘normality’.” case, and soon regulations will profession and lay interests, which place for electronic submission of In addition the committee, allow the duty solicitor to assist in explored alternative proposals applications will enable many of together with the Professional an ABWOR case. to dispensing with juries and those transactions to proceed. For Practice Committee, has been “It has to be acknowledged, the produced a paper in response to residential transactions however, the overseeing the work of the Success effort and spirit of cooperation and Government consultation on the general shutdown and Government Fee Agreement Working Party, support to the profession from options. Discussions have continued regulations and guidance will be the set up to work with the Scottish SLAB during our work with them in and replacement legislation is still principal factor. Government on part 1 of the Civil this time of crisis,” Moir comments. awaited. “The longer the restrictions last, Litigation (Expenses and Group “Long may it continue!” A further working group has been and the bigger the impact of the Proceedings) (Scotland) Act 2018 At the same time, Debbie tasked with looking at all other shutdown on clients, the harder, and the Success Fee Agreements Wilson’s Criminal Law Committee aspects of criminal business; it and slower, the return to ‘normal’ is Regulations which came into force was spending “an exceptional continues to press for commitments likely to be.” on 27 April. amount of time” dealing with the to plan ahead to deal with the On the other hand, the ability to (For a separate article by Iain Nicol Coronavirus (Scotland) Bill, and not backlog of court business and to submit advance notices for transfers on the regulations, see this month’s only the contentious judge-only start safe operational practices of part, and to submit applications additional online copy.) The working solemn trials provisions which were in court. Many practitioners have for land registration electronically, party’s proposed style agreement dropped in the face of concerted spoken about chaotic and, as are all benefits. “We would hope has been brought into line with the opposition. Substantial changes regards danger of infection, high that these (and other) improvements regulations, and can be accessed were enacted dealing with early risk scenes at courts as the effects are retained and developed further at www.lawscot.org.uk/news-and- release of prisoners, evidential of the pandemic began to be felt. after the restrictions are lifted.” events/law-society-news/success- matters, extension of time, and “Several weeks in, the fee-agreement-regulations/ community service. arrangements for necessary Civil courts: pushing for a restart Civil legal aid: Closure of the courts has operating changes also had a massive impact, and the On civil legal aid, Patricia Civil Justice Committee under Iain Thom and her committee have been Nicol has spent many hours on the liaising and negotiating with SLAB problems – and proposed solutions and the Scottish Government on – reported by practitioners, firms changes to operating procedures and bar associations across the and regulations to ensure that country. applications can be progressed Prescription and limitation without the need for face-to- has been a particular concern, face contact with clients, work and a detailed proposal has necessitated by the lockdown can been submitted to the Scottish be paid, and quicker payments Government for consideration in the made of interim accounts to assist FREE CONSULTATIONS next Coronavirus Bill. with solicitors’ cash flow. At the same time regular dialogue With most firms having to The impact of Covid-19 upon legal businesses is continues with Scottish Courts & furlough staff, “they have valued incalculable. Tribunals Service as it gradually lifts the ability to interim fee the Board the restrictions on court business at far earlier stages than would (see also the feature on p 20). “The normally be the case”, she states. We advise on future proofing to protect and grow dialogue is intended to help the court However the committee is having to profitability, stability and to promote growth and system focus on the most important continue to press the Government spectrumsecurity. Now of practice more than management ever is the offering time to leadership act. andWe offer guidance two free for theconsultations future. across the whole areas of work to address, recognising to progress the changes to the that things cannot go back to normal regulations. Thriving beats surviving! overnight,” Nicol explains. He notes that while agents are Criminal law and This special offer is available to all legal practices able to make some progress with legal aid: cash crisis throughout Scotland until 31 August 2020. their cases, they are hampered With criminal defence by the lack of court staff working firms facing immediate Contact: remotely. And as all proofs have and critical cash flow been adjourned for several months, issues, the Criminal Director along with most procedural Legal Aid committee under Ian Moir Graeme McKinstry hearings, routine processing of worked sometimes almost round Tel:01292 281711 McKinstry Practice Management civil business has largely ground the clock, negotiating new ways to to a halt. With only 10 hub courts make interim claims to SLAB in all Email: [email protected] operating out of 39 sheriff courts, criminal matters. Concessions were

May 2020 \ 15 CORONAVIRUS: SOCIETY

“Safety of all attending the courts is paramount, but there is a need for better communication about the arrangements now and planning for the future”

criminal court business remain Mental health ad hoc,” Wilson observes. “Safety and disability: of all attending the courts is practicalities paramount, but there is a need for “From mid-March onwards, the better communication about the extra workload generated by arrangements now and planning for COVID-19 has been intense,” the future.” reports Adrian Ward, whose role as Both conveners are alarmed at convener “amounted to something the growing backlog of criminal approaching a full time job” over the cases and the length of time untried ensuing month. accused are being held on remand. For solicitors in the sector, Here the “new norm”, Wilson social distancing has presented believes, will protect the safety of significant challenges in dealing the public, including court officials, with people with impairments of by using remote technology where capacity, mental illness, or other possible. “Getting as much criminal vulnerabilities and disabilities. business up and running utilising Also, pre-existing difficulties in the closed courts is essential.” obtaining necessary medical to a draft of temporary statutory non-disabled and disabled people Work also continues to consider reports have been exacerbated, and amendments that would, among is reduced. It may be that some how solicitors should conduct court processing of guardianship other things, enable a power of aspects of this better understanding police station interviews. At the applications has generally been attorney certified by a solicitor to and reduction in differentiations moment the Society’s advice restricted to urgent interim orders. become operable on presentation can be carried forward beyond the remains that solicitors should not Any such restrictions are inherently for registration, rather than waiting current crisis.” attend interviews if they do not feel discriminatory, Ward points out, for completion of the process. it is safe to do so. It is continuing to where the result is deprivation Ward concludes with a few Licensing: back engage with Police Scotland, who of effective support to the adult. observations. His committee of the queue have published guidance on this for Similarly, powers of attorney have colleagues have commented that: Finally, spare a thought for the non-police personnel, with a view been unable to be registered when “We may well be learning lessons licensing lawyers, who were also to ensuring the provision of safe needed, perhaps on an emergency for the long term, beyond current heavily involved with Government and secure systems for undertaking admission to hospital. restrictions, and that things are ahead of the Scottish bill, but whose interviews in accordance with all The committee successfully perhaps unlikely to return to where clients look set to be the last to have NHS and Scottish Government sought a reduction, from two years they were. In the era of electronic their shutdown restrictions lifted. advice. to six months, in the duration of communications, virtual meetings “Work in that area for firms Despite the concessions achieved temporary modifications to the and interviews, and so forth, can has been decimated,” comments from SLAB, Moir estimates that mental health legislation, and requirements for people to be convener Archie MacIver. “Our most firms will be experiencing at resolved with the Public Guardian ‘personally present’ be relaxed proposals have assisted in certain least a 75% drop in income at the an issue over review of guardianship satisfactorily?” areas – e.g. holding remote moment. “We must get the system accounts which was delaying In addition, two aspects of the hearings and building in a greater moving again... We must get the remuneration. current situation are significant in degree of flexibility in the system written pleas up and running so As a significant practical matter, relation to people with relevant – but some councils are simply not we can accelerate some of those in response to requests from the disabilities. “First, society as a accepting applications, so despite cases where they are capable of profession the committee drafted, whole is gaining an insight into our best endeavours we have resolution.” and agreed with OPG, guidance some aspects of life that are been stymied in those parts of the As the Journal went to press, he by which execution of a power of permanent for people with relevant country. was anticipating news, following attorney could competently be done disabilities, such as restrictions on “Time will tell, but it seems pretty further “very positive” meetings, remotely – based on a precedent movement, and inability or difficulty clear that the hospitality sector will about some summary criminal where Ward had had to deal with an in attending personally for a wide be at the back of the queue. It may business restarting safely in the overseas granter. range of purposes. At the same still be some time before anything very near future. At time of writing, a response is time, however, in relation to such even remotely approaching awaited from Scottish Government matters the differentiation between normality is achieved.”

16 / May 2020 COVID-19: some practice updates

Some updates to the summary in the April Journal of changes in regulation and practice agreed by the Law Society of Scotland in response to the coronavirus restrictions

eaders are reminded to Specialist accreditations challenging time and your priority must check regularly the In addition to the automatic extension by be the health and safety of yourself, your Coronavirus Updates 12 weeks of specialist accreditations due to colleagues, family and friends. If, as a result web page, accessed expire on or before 30 June 2020, the scheme of the current circumstances, you are having R from the Society’s for accreditation of family and commercial difficulty completing your accounts certificate, home page www. mediators has been amended to permit the obtaining signatures or you have any other lawscot.org.uk, which sets out where and extension of accreditations by up to three issues or queries, please do not hesitate to how changes in regulation and practice calendar months. Any mediators whose contact us at [email protected]”. will operate for the duration of the accreditation is extended during the lockdown To speak to a member of the team, call COVID-19 emergency. period will be contacted and advised of the Kerry Allan on 0131 476 8355. What follows is a summary of some extended date of expiry of their accreditation. of the main changes since the article at Notaries public Journal, April 2020, 42. Accounts certificates Any document which has to be executed in Due to the accounts certificates rules and in the presence of a notary must be signed by Client ID order to protect members’ compliance, the the deponent when the notary is physically Three methods have been set out for Society will continue to request that practice present. Until such time as there is a identifying and verifying clients where no units submit their accounts certificates in legislative change, it is not possible for a physical contact is possible: accordance with the timescales set out in the solicitor to notarise a document remotely. • client identity verification software, from rules. The content and format of the certificate a reliable service provider; have recently been reviewed and the process Information and support for businesses, for • videoconferencing tools, following a has now been moved online for all firms. solicitors, and for trainees and students, is procedure set out on the web page; The Society is aware “that this is an extremely available at the same page. • email and third party validation, where another professional is able to confirm an established relationship with the client ELSEWHERE and is willing to review the due documentation. • The Crown Agent has interest-free for the first 12 all subsequent properties; However, it is important to note that the published a letter outlining months. The total term of and offers £2,000 grants regulations have not been relaxed in the the updates made to the loan will be six years. to those who became self- current situation, and it remains the case COPFS processes during Businesses which are employed since April 2019 that if due diligence cannot be completed, COVID-19. COPFS has already receiving support and are therefore ineligible or any “red flags” cannot be addressed, produced a user guide and through the Coronavirus for UK support. the solicitor should not proceed with the an installation guide for Business Interruption • has transaction. their Secure Disclosure Loan Scheme (CBILS) can created a system to allow System, to which the letter transfer their funding to the electronic submission Court attendance refers. the Bounce Back scheme. of applications to register Solicitors who are willing and are able • Applications to the UK • Applications for a traditional deeds in to attend at court are advised to ensure Government Bounce Back second phase of COVID-19 the Land Register of that they are aware of the terms of the Loan scheme, offering funding announced by Scotland. This application protocol for court users that has agreed loans of between £2,000 the Scottish Government is by way of a new digital between SCTS and COPFS: see and £50,000 through opened on 30 April. portal on the Registers of bit.ly/2yAPN8D accredited lenders to Among other features Scotland’s website, which Solicitors’ own health and safety SMEs affected by the this extends the Small should be consulted for should be their primary concern and pandemic, opened on 4 Business Grant scheme more detailed guidance there is no requirement to attend court May. The UK Government to provide, in addition to including its policy if, in line with current NHS and Scottish will guarantee 100% of a 100% grant on the first to control the flow of Government guidance, they feel it is the loan, which will be property, a 75% grant on applications. unsafe for them to do so.

May 2020 \ 17 IN ASSOCIATION WITH DENOVO

The “new normal” legal practice Life will be different after the lockdown, and now is the time to plan how to make your business more efficient and agile

hat will the “new normal” look like for the legal profession in 2020? That technology will play W a significant role is self-evident. We are facing protracted social distancing measures in our personal life and workplace, and to get through this we see that people in their social lives and organisations in their day-to-day business life are now, more than ever, adopting technology to help them adapt to the changes and do what they need to do. Governments across the world are already beginning to consider their lockdown exit strategies. We should be doing the same and planning how to come out of the other side of this dark time stronger, more agile and ready to take our teams, customers and businesses forward.

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18 / May 2020

CORONAVIRUS: COURTS A tale of two systems: COVID-19 and the courts

The response of the Scottish courts to the COVID-19 shutdown has been compared unfavourably with that in England, where much more business has continued. Naomi Pryde compares the two systems and suggests some priorities for improvement

he ongoing coronavirus pandemic has detailed letter from LSS to SCTS. Many compared SCTS’s affected all of us, in particular how we approach extremely unfavourably to that of HMCTS, and could work. All but “essential” workplace not comprehend why there was such a marked difference. offices are closed, and the vast majority T of lawyers find themselves working from How flexible? home. However, pandemic or not, the The English Civil Procedure Rules (CPR) and Family Procedure administration of justice must go on. Rules provide for “considerable flexibility”. A Remote Hearings There are those who feel that justice in England, unlike Protocol has been implemented for the county court, High in Scotland, has largely gone on “business as usual”. I am Court (including the Business and Property Courts), and dual qualified and operate a split Scots/English law practice, Court of Appeal (Civil Division). This states that there will no and prior to lockdown, spent half my time in London. I have adjournments or stays (the English sist) unless “absolutely therefore been fascinated by the different approaches taken by necessary”. Judges have been encouraged to make as much HM Courts & Tribunals Service (HMCTS) and the Scottish Courts use as possible of telephone and video hearings. Skype for & Tribunals Service (SCTS) in facing the same challenges. Why Business has been installed on the laptops of the judiciary and has there been such a disparity? Is the English system, and HMCTS staff, and a cloud video platform is being used in some its rules, more adaptable? Or has HMCTS simply been more civil and family hearings. The courts have offered guidance for reactive and responsive to practitioners’ needs? remote hearings, such as: submitting recordings in 30-minute As the Law Society of Scotland (LSS) Council member segments, bandwith guidance, appropriate document sharing for England & Wales, I volunteered to use my detailed systems, and remote etiquette (e.g. using “mute” function). A understanding of the two systems to produce a review to telephone helpline can assist those having technical issues identify the real differences, looking at topics including court when joining remote hearings. rules, service of documents, electronic filing, sheriff and In fairness to SCTS, it took on board the profession’s county courts, remote hearings, and the day-to-day operation concerns and collaborated with LSS and Faculty. It has of the Court of Session and the High Court. I also spoke clarified the scope of “urgent” or “essential” business, and to numerous practitioners on both sides of the border. I’m assessed whether other business could be carried out grateful to everyone who took the time to give me their views. remotely and what phased steps could be taken. On 17 and Space does not permit me to reproduce all of my research 29 April it issued welcome guidance about the restarting here, but this article seeks to provide a high level overview of of civil business in the Court of Session and sheriff courts. my findings. Indeed on 21 April, Scottish legal history was made when Lord Carloway, Lord Menzies and Lord Brodie heard the Kezia Initial approaches Dugdale defamation appeal in a virtual court with remote links. On 17 March, the Lord Chief Justice of England & Wales stated: Journalists were able to watch on a secure closed link. “it is of vital importance that the administration of justice does Afterwards Lord Carloway commented: “The technology not grind to a halt… Our immediate aim is to maintain a service worked well from the court’s perspective and the hearing to the public, ensure as many hearings in all jurisdictions can captured the ambience of a physical courtroom. The judiciary proceed and continue to deal with all urgent matters”. fully support the promotion of virtual cases where it is In stark contrast, the Court of Session issued an email to technologically possible and appropriate in the current situation.” civil court practitioners the following day, stating: “All proofs, Similar hearings will take place until at least 10 proofs before answer and civil business involving witnesses May. SCTS said virtual courts could become a permanent feature. will be discharged and will not be proceeding until the end of The challenge faced by both jurisdictions is the principle April 2020 when the position will be reviewed.” SCTS advised of open justice. In England, Practice Direction 51Y confirms that it would only deal with “urgent” or “essential” court that remote hearings are capable of facilitating open justice business, without clearly defining these terms. and should, as far as possible, remain public. If a media Civil litigators in Scotland were horrified, and both the representative is able to attend remotely, proceedings Faculty and LSS immediately entered into dialogue with Naomi Pryde will remain “public”; in any event, private hearings will be is head of SCTS. In an open letter, Vice Dean of Faculty Roddy Dunlop recorded. A hearing is made public by projecting a screening Commercial QC stated that SCTS’s “mothballing” of civil business was Litigation in of the remote video within the courtroom. It may also be live extremely concerning and urged it to review its approach. Scotland with streamed. As mentioned, Scotland provided a secure link for The views I gathered from solicitors helped inform a DWF LLP. journalists to attend the virtual hearing.

20 / May 2020 sophisticated in its uses of technology than other sections of the Court of Session. Indeed, technology is an important feature. The judges’ court diaries are available electronically, enabling the date and time of any subsequent hearing to be fixed immediately. Most documents required during an action can be emailed. Interlocutors, once signed, are emailed to the solicitors. Documents and legal authorities required during a hearing are expected to be lodged in electronic format. Schedule 4 to the Coronavirus (Scotland) Act 2020 introduced new rules allowing the signing and lodging of most court and tribunal documents electronically. This will be in force until 10 May 2020 unless extended. However I can’t help but wonder why this can’t continue after lockdown? In England, the courts accept the e-filing of documents and this is routinely done.

Pragmatic approach Many hearings are of course already streamed: some Court Courts in England have approached cases during COVID-19 of Appeal and all Supreme Court hearings. On 24 March, in a pragmatic fashion: see in particular O’Driscoll v F.I.V.E. the Supreme Court conducted its first ever remote hearing Bianchi SPA and Muncipio de Mariana v BHP Group plc [2020] which could be followed on social media accounts including EWHC 928 (TCC). In BHP, the court discerned that it would Instagram (hashtag #VirtualCourt). It has also provided an take significantly longer to prepare evidence by means of online guided tour facility during the lockdown. remote hearings and granted the extension sought. The judge identified the following principles in relation to adjournment Electronic service? and remote hearings: A number of post offices are closed, postal delivery is • The continued administration of justice is important. increasingly delayed, the track and trace service is not fully • Disputes can be resolved fairly, remotely, and there should operational, sheriff officers/process servers are limited in be rigorous examination of this option. the work they can do, and social distancing measures mean • Courts may be prepared to hold hearings remotely in it is not always possible to obtain a signature on delivery. previously inconceivable circumstances. Accordingly, many firms in both Scotland and England have • Decisions as to whether a fair resolution can be achieved are announced that, due to office closures, until further notice case specific. they will not accept service by hand, post or fax, and all On time extensions (considering Heineken v Anheuser-Busch communications should be sent by email. This approach, [2020] EWHC 892 (Pat) and Practice Direction 51ZA.4), the whilst pragmatic, is not strictly in compliance with court rules judge identified these principles: in either Scotland or England & Wales. • Existing deadlines should be met, where possible. In Scotland, documents can be served, in short, • Legal professionals will be expected to make appropriate use by personal service, by post or by a party’s solicitor of modern technology, and lawyers and experts to go further accepting service on their behalf, though service of a than in normal circumstances (putting up with inconveniences summons or petition requires solicitors to meet face “Whilst the and using imaginative, innovative working methods). to face. None of these methods are ideal in present • The court may be willing to accept evidence and other circumstances. There is still no court-sanctioned pandemic material which is less polished and focused. process we are aware of for service to be accepted presents an • The court will avoid requiring compliance with deadlines electronically; parties can agree between themselves which are unachievable, even with proper effort. but we do not know what the court’s attitude will unprecedented • It is recognised that things take longer via remote working. be when the COVID-19 situation is over. Although challenge, it Courts in England have made it clear that practitioners are service is permitted by email in England & Wales, expected to step up to dealing with the challenges imposed by and is for some firms common practice, it requires can also be COVID-19, not just in innovation/technological terms but also the express consent of both parties (Barton v Wright viewed as an in terms of collaboration. Hassell LLP [2018] UKSC 12). At the time of writing, I do not believe there are any There are undeniable advantages of email service, opportunity” reported decisions dealing with COVID-19 in Scotland, but including cost savings, speed, security (emails can I respectfully suggest the principles outlined above are be encrypted and password protected), and ease eminently sensible and should therefore be highly persuasive. of evidencing. It is respectfully suggested that both jurisdictions should look at updating their rules of Opportunity for progress service to reflect modern practice. Scotland is no stranger to innovation; whether it’s the telephone or the television, Scots have changed lives around the world Filing of documents by being bold and innovative. Sadly we aren’t seeing much of In Scotland, documents are normally filed by a court runner this innovation in our court system. Practitioners have worked physically lodging the papers. One dual qualified practitioner hard to promote Scotland as a forum for the effective resolution commented to me that this system seems “archaic” in of disputes and a viable alternative to England. It is therefore comparison to the English system. essential for the future of Scottish litigation that the Scottish The exception is the Court of Session Commercial Court courts are fit for purpose and for the modern day. Whilst the (the rules of which, as I understand it, are loosely based on pandemic presents an unprecedented challenge, it can also be the CPR), where documents are routinely lodged by email viewed as an opportunity, for all jurisdictions, to invigorate their direct to the commercial clerk. The court is considered more court systems and bring them into the modern day.

May 2020 \ 21 MENTAL HEALTH

Why we need kindness in the law Kindness is the focus of Mental Health Awareness Week, which takes place this month. LawCare’s Elizabeth Rimmer suggests that in our present situation it should be given additional importance in the legal workplace

he last few weeks have been difficult, but have also brought out the best in us. Children’s T drawings of rainbows in windows, thousands of people signing up to be NHS volunteers, neighbours offering to do each other’s shopping, Captain Tom and his unbelievable fundraising efforts, and the weekly #clapforcarers have shown just how much kindness matters in a crisis. Our positive connections and interactions with people are one of the greatest predictors of our happiness. Our nervous systems respond positively to kindness; helping other people and connecting with them signals feelings of pleasure, safety and warmth to our brain. Humans have evolved to behave in ways that promote the understanding about deadlines or times of should always treat colleagues and juniors survival of our species, and kindness and meetings, asked you how you are coping, with respect, by listening, saying please and looking out for others have been crucial. or spoken about their own situation at thank you, sometimes picking up the phone From around 18 months old, children have home more. Many organisations have made rather than sending emails. Sadly we know a natural instinct to be kind, to pick up sure to check on members of staff, or offer at LawCare this just doesn’t happen in some something that someone has dropped or to virtual opportunities for connection and chat legal workplaces – we often hear from give hugs or kisses to someone who looks outside of work calls. tearful or anxious lawyers who have been sad, for example. We know that many lawyers are not shouted at, ignored, undermined or talked happy – all the research and data produced down to. Kindness in the legal workplace? over the last few years from a range of Being respectful in the workplace Kindness is not always seen as a priority sources suggests that stress and anxiety benefits everyone, and the research in the legal workplace, especially as it are common. Could more kindness in supports this. Recent Harvard Business contrasts with the cut and thrust and the legal profession be the answer to Review research found that respect was the competitive nature of the law. In the past tackling some of these issues and creating most important quality in a leader, and other few weeks you may have experienced some happier workplaces? A study from the research has shown that the most likeable kindness from your colleagues, or you may journal Emotion showed that kindness in leaders who expressed warmth were also not. At LawCare we have seen two sides of the workplace can create a ripple effect the most effective leaders. Treating people the coin. On the one hand we have heard throughout the whole organisation, well means they will be more likely to want from legal professionals who have not been resulting in a happier workforce, with to work for you and do well for you – and allowed to work from home, or have had employees experiencing greater job civility is contagious, so if leaders model little to no communication or reassurance satisfaction, autonomy and feeling more this behaviour it will filter down to the rest from their managers. On the other hand, competent at their jobs. of the organisation, resulting in a happier, some of us have had the opportunity to see So what does being kind in the workplace healthier, more motivated workforce and people we work with in a different light. look like, and how can we practise it? better retention rates. On Zoom calls, in more casual clothes with their kids, pets, or books on a shelf Respect Compassion behind them, they may have seemed more Musician Jon Batiste said: “You’re never too Compassion is a huge part of kindness. approachable, more human. important to be nice to people.” It doesn’t Learn how to step into someone else’s Colleagues may have been more matter how busy or stressed you are: you shoes for a moment, and understand that

22 / May 2020 everyone is dealing with a wide variety can occur when staff aren’t getting positive of issues at work and at home that you feedback from their colleagues or managers. might know nothing about. These are LawCare support challenging times, so ask people how they Help others LawCare offers a free, confidential are feeling, how they are coping with their One of the greatest ways to demonstrate emotional support service to all legal workload, what you can do to help. When kindness is by helping others. In the professionals, their support staff something goes wrong, try to find out why workplace that might look like volunteering and families in the UK and Ireland. in a sensitive way, rather than blaming, and to help with a project to someone who’s We’re here to listen, with helpline forgive people for their mistakes. We all overwhelmed, offering to show someone calls, emails and webchats answered make them! how to do something technical, suggesting in confidence by trained staff and a five minute brainstorm to a colleague who volunteers who have first hand Praise and gratitude seems to be at a dead end, or sometimes experience of working in the law. We Lawyers are often very competitive, detail- it might take the form of mentoring or also have a network of peer supporters focused, and legal work is often about reaching out to build a connection with and offer information and training to winning or losing. We frequently forget to someone. We all have unique skills that can legal workplaces. celebrate our successes and instead focus help others, and it also benefits us to help If you need to talk, call our free, on what went wrong, even if in many cases other people, making us feel valued and independent and confidential helpline it’s very minor. At LawCare we often get giving us a sense of purpose. on 0800 279 6888, email support@ calls from legal professionals who are still Making kindness a priority in the lawcare.org.uk or visit www.lawcare. thinking about a mistake they made years workplace will make the law a happier org.uk. You can check out our new ago. To try and address this we all need to and healthier place to work. Kindness is wellbeing hub at www.lawcare.org.uk/ make sure we are giving credit where credit contagious; frequent acts of kindness at Elizabeth wellbeing Rimmer is due, saying “well done” or “thank you” every level in the workplace will lead to is chief Kindness is the theme of this year’s beyond just giving a bonus. This will help more engaged and connected staff. Try executive Mental Health Awareness Week, from people feel truly valued and help prevent being friendly, generous or considerate of LawCare 18-24 May 2020. workplace-related anxiety building, which today. Kindness matters more than ever.

May 2020 \ 23 PRESCRIPTION

No time to lose The leading Supreme Court decisions on prescription have been applied in ways that seem harsh on pursuers, but is it necessary to read them so strictly? David Johnston QC offers an alternative analysis

brief history of (the law on) time” by Alyson Shaw (Journal, of their land, which they had hoped to develop. The March 2020, 26), discussed prescription and latent loss included the legal expenses they incurred, as well as loss of damage claims affected by s 11(3) of the Prescription and the development value of the land. Limitation (Scotland) Act 1973. As she makes clear, the Some elements of the judgment are straightforward. First, it recent case law has shifted the balance decisively against is necessary at the outset to identify the loss: here that was the “ pursuers. They might reasonably ask: “How did it get so inability to obtain vacant possession of the land on 10 November A late so soon?” Here are some further thoughts. 2005 (see para 24). Secondly, that “loss” is different from the As interpreted by the Supreme Court, prescription heads of loss: s 11(3) is about awareness of “loss, injury or damage”, starts to run under s 11(3) once the pursuer is aware not the particular heads of loss (see para 21). Thirdly, s 11(1) states as a matter of fact that he or she has sustained loss. In David T the ordinary rule, that an obligation to make reparation becomes Morrison & Co Ltd v ICL Plastics Ltd 2014 SC (UKSC) 222, the case enforceable on the date when loss occurred; s 11(3) postpones of the explosion at the ICL factory, it was simple to apply that test: that date to the date of awareness of the loss. But the subsections the pursuer was aware of loss on the date the explosion occurred. are concerned with the same loss (see para 20). Fourthly, on that The issue was more difficult in Gordon’s Trustees v Campbell Riddell approach the Supreme Court concluded that loss for purposes of Breeze Paterson [2017] UKSC 75, a case of economic loss, where the s 11(1) occurred on 10 November 2005. And it concluded that loss loss arose from the pursuers’ solicitors serving defective notices to for purposes of s 11(3) occurred on the same date, because the quit. Again, however, the Supreme Court held that the pursuer knew of the loss (failure to obtain vacant question was when, objectively, the pursuers became possession) on that date (see para 24). aware that they had sustained loss. “The Prescription Understanding “loss” Awareness of what? If the judgment ended there, matters would be quite Gordon’s Trustees in particular has led the way to (Scotland) Act straightforward. But it does not. Two parts of the some troubling decisions on economic loss in the 2018 seeks to judgment are problematic. The first is that at the context of professional negligence. Take the case end of para 21 the court says this: “It is sufficient of Midlothian Council v Blyth & Blyth [2019] CSOH address the that a creditor is aware that he or she has not 29. There the council entered into a for problems these obtained something which the creditor had sought construction of a housing development which was or that he or she has incurred expenditure.” built on land above former mine workings. Tenants cases raise, but The reference to incurring expenditure has of the houses fell ill owing to gas emanating from it is not going to prompted defenders in cases such as Midlothian the mine workings. On the advice of consulting Council (and others, such as Loretto Housing engineers, the development had been constructed do that quickly” Association Ltd v Cruden Building & Renewals Ltd without any gas membrane. It was found to be [2019] CSOH 78) to rely on such things as initial inherently defective, the construction expenditure construction expenditure to identify the starting was wasted, and the whole development had to be demolished. date for prescription. The council was of course aware that it was incurring expenditure It seems at least possible that the court did not intend to refer on construction. The judge held that objectively the council was generally to expenditure of any kind at all. The words quoted therefore aware of the loss which it subsequently sought to recover. may be intended to refer back to what is said in para 19 about This decision seems very odd. The point of s 11(3) is, after all, expenditure incurred as a result of breach of contract. But the to postpone the commencement of prescription until the pursuer generality with which they are expressed has opened the door for has certain knowledge. On the face of it, it seems strange that defenders to advance a much broader line of argument. knowledge of expenditure which gives no indication whether the The second problem is that the examples the court gives in construction work is defective should have the effect of triggering order to explain the law are difficult to follow. Take this passage, the start of the prescriptive period. The decision seeks, however, to from para 22: “Thus a person may begin a legal action and incur apply the principles set out in the judgment of the Supreme Court expenditure on legal fees on the basis of negligent legal advice or in Gordon’s Trustees. he or she may purchase a house at an over-value as a result of We therefore need to examine the terms of that judgment the negligent advice of a surveyor. In each case the person may more closely. In Gordon’s Trustees the solicitors were instructed be aware of the expenditure but not that it entails the loss.” The to serve notices to quit to take effect on 10 November 2005. The difficulty with these examples is that the court explained in para 21 notices were ineffective, and the tenant did not move out. The that the critical question is when a pursuer becomes aware of loss, pursuers sustained loss through being unable to recover vacant not particular heads of loss. But these examples are concerned

24 / May 2020 precisely with heads of loss: where a lawyer has given negligent as s 11(3) requires, and not being distracted by particular heads legal advice, expenditure on legal fees may well be a head of loss, of loss, such as expenditure. but it is not the loss itself. Where a surveyor has given negligent advice in relation to a house purchase, the price paid for the house Delayed remedy may be a head of loss, but the loss itself is the purchase of the The Prescription (Scotland) Act 2018 seeks to address the sorts house at an excessive value. of problems these cases raise, but it is not going to do that The difference between these two approaches is even clearer if quickly. The Scottish Government is expected soon to consult on we return to the Midlothian Council case. Here the judge held that transitional and commencement provisions. Any change in the law the council was aware of the expenditure it had incurred between is likely to be several years away. By way of comparison, the 1973 2007 and 2009. That was wasted expenditure. The council knew Act came into force in July 1976, three years after the Act received about it, so it knew about the loss. The decision reads across the Royal Assent. A lot of cases yet will be decided on the basis of two problematic passages from Gordon’s Trustees mentioned the current wording of s 11(3) as interpreted by the courts. The above and it reasons from them to the conclusion that, at the time arguments above, if right, may mean that the picture is not quite as it incurred the expenditure, the council knew about the loss (see bleak for pursuers as it first appears. But any delay involves risk: para 22). But, given the tensions identified above in the reasoning pursuers have no time to lose. in Gordon’s Trustees, this conclusion does not appear to be necessary. The essential point is to recall the distinction between Some late news “loss” and heads of loss in Gordon’s Trustees. What are the heads Since the preceding text was written, another decision on s 11(3) of loss here? They are such things as expenses on professional has been issued: WPH Developments Ltd v Young & Gault LLP (in fees; decanting tenants; demolition; and rebuilding. Depending on liquidation) (CA30/19), Sheriff Reid, Glasgow , 8 April how the claim is formulated, they might include the cost of initial 2020. Plans drawn up by the defender architects had wrongly construction. But none of these is the same thing as the “loss”. shown the boundary of a development site; relying on the plans, If one asks what the “loss” is here, it is the fact that housing the pursuer property developer constructed boundary walls on constructed on this particular land without a gas membrane was land which it did not own. Did prescription run from the date the inherently defective. When did the council know of that “loss”? pursuer incurred the expenditure on building the walls? Only in 2013 (see paras 19-20), less than five years before it The sheriff’s decision contains a close analysis of Gordon’s raised proceedings. Trustees and Midlothian Council, to which it is not It is obvious that the fact that the council knew possible to do full justice here. It must suffice to it had paid for construction work does not mean highlight four points. First, s 11(3) is concerned with that it knew that it had a claim arising out of the a pursuer’s actual or constructive awareness: to construction work. Why should the exercise of determine that, it is not appropriate to make use statutory interpretation of the 1973 Act take an of hindsight, which is a different thing. Secondly, entirely different and counter-factual approach? awareness that expenditure has been incurred To focus on a head of loss such as construction is not necessarily the same as awareness of the expenditure appears to make little sense, since it is occurrence of loss. Thirdly, the approach that hard to understand why knowledge of something David Johnston QC equates these, which derives from Gordon’s Trustees, which gives no indication whether construction work is an advocate with is based on obiter dicta rather than on the true ratio is defective should trigger the start of the prescriptive Axiom Advocates, of that case (an argument similar to the one set and author of period. On the approach suggested here, however, the Prescription out above). Consequently, Midlothian Council was difficulties are removed by focusing on “loss”, and Limitation wrongly decided.

May 2020 \ 25 DISPUTE RESOLUTION ODR: the next leap forward? With COVID-19 related delays hampering already slow and expensive court processes, online ADR is gathering momentum globally, Rachael Bicknell claims

ohn F Kennedy famously stated in 1959: Opportunity factors “When written in Chinese, the word ‘crisis’ is First, ODR (and ADR) gives lawyers an opportunity to better serve composed of two characters – one represents their clients and society as a whole. Access to justice is problematic danger and one represents opportunity.” (The for many businesses and individuals in Scotland. Litigation, even J quote has been described, more recently, as a in the commercial courts with judicial case management and linguistic faux pas.) The danger he was specialisation, is disproportionately expensive, slow and uncertain. referring to became the Cuban Missile Crisis. A dispute which runs to proof is unlikely to cost much less than Sixty-one years later, a very different crisis is changing the £100,000. For many disputes, that figure is conservative. Legal world. Social distancing restrictions have catapulted the global costs for commercial disputes will often run to several times that legal profession into the 21st century by forcing the universal use figure, resulting in parties spending as much time arguing about of technology. Scottish courts, especially sheriff courts, have been the costs as over the claim. slow to adapt, with only very limited business yet Secondly, ODR gives lawyers an opportunity to capable of being dealt with remotely. Most Scottish grow their client base and their income. There are tribunals are closed to existing and new business. “Social distancing has a huge number of commercial and civil disputes in Mediators have been quick to move their face-to- Scotland which get nowhere near law firms due face practice to Zoom. Suddenly, online alternative catapulted the global to the cost of taking legal advice, commencing and dispute resolution (“ODR”) is in the spotlight. legal profession into the running litigation. Other professionals are assisting clients with Online options 21st century by forcing all sorts of disputes and attempts to negotiate ODR combines ADR processes, technology and the universal use resolutions. Professional bodies such as the RICS impartial independent experts. It is recognised offer well regarded dispute resolution services for a internationally as a specialised and highly effective of technology” wide range of property disputes. As we enter what form of ADR. Its origins date back to the 1990s when is predicted to be the biggest recession in centuries, it was created to resolve disputes resulting from online transactions litigation is going to be a non-starter for an even greater proportion and interactions between parties in different jurisdictions. In 2013, of Scottish businesses. Research from the US reports that by using Lord Neuberger, then President of the Supreme Court, said in a ODR, parties can save as much as 80% of the costs of litigation speech on Judges and Policy: “We may well have something to learn in as little as 20% of the time. The economics of ODR mean that from online dispute resolution on eBay and elsewhere.” The eBay claims that were previously unaffordable or cost-prohibitive can be Resolution Center now handles over 60 million disputes each year, progressed or pursued. while courts have been slow to adopt online or hearing-free models. Thirdly, ODR gives lawyers an opportunity to make face-to- All methods of exploring the resolution of a dispute with face dispute resolution more efficient and cost effective. The the assistance of technology are ODR. It can involve advanced background to a dispute can be explored in more detail using technologies and processes such as machine learning, artificial online processes such as videoconference, secure and confidential intelligence and cognitive computing which are being developed discussion “channels”, or parties uploading video statements and promoted to resolve specific types of disputes. More explaining the dispute from their perspectives. importantly for the practice of law, it is the movement online This allows the neutral expert to clarify key elements in more of face-to-face mediation, arbitration and other resolution detail and to hit the ground running when the face-to-face dispute processes, using videoconferencing combined with secure resolution process starts. onboarding, e-signing of agreements, document sharing and online It is difficult to argue that ODR will not be at the core of the Rachael communication, to deliver fair, proportionate and effective redress future of dispute resolution. The world today is very different Bicknell for commercial and civil disputes. is founder to how it was even two months ago. The new normal will see a The momentum of global ODR continues to increase in many and director continued use of remote working with the use of technology, and jurisdictions in Europe, the US, Canada, Australia and New of dispute lawyers will need to embrace ODR. In the long run it will result Zealand, in the public and private sectors. Hong Kong has recently resolution in more work and happier clients. And for the sceptics, some wise service announced a scheme as part of its measures to support individuals Squaring words from a pioneering Scot, Alexander Graham Bell: “When and businesses affected by the COVID-19 crisis. The tragic loss of Circles one door closes, another opens; but we often look so long and so life and collapsed businesses are undoubtedly the “danger”. But squaring regretfully upon the closed door, that we do not see the ones that there is also an “opportunity” for disputes lawyers in Scotland. circles.uk open up for us.”

26 / May 2020 PRISONS

Things are improving in our prisons… aren’t they?

Howard League Scotland welcomes the moves to release certain prisoners to reduce the problems caused by COVID-19, but believes that Government actions must be closely monitored to ensure that promises are kept

fter years of Howard that 111 individuals across 10 establishments League Scotland were self-isolating. These two figures were campaigning to reduce then updated daily. On 15 April, the daily figures Scotland’s woefully high of numbers of individuals self-isolating and prison population, the the number of establishments affected were A unprecedented augmented by the figure of how many individuals circumstances of the had confirmed COVID-19. While this information COVID-19 crisis have continues to be published on a daily basis, as we brought an unwelcome urgency to its calls. have repeatedly pointed out this only becomes Whilst acknowledging the tragedy that triggered useful in gauging whether the situation is Government action, we welcomed the Cabinet improving or deteriorating, if we have prison- Secretary’s announcement on 21 April that the specific data. Under acknowledged pressure from first wave of prisoners would be released under us, the Cabinet Secretary stated on 24 April that provisions contained in the Coronavirus he will liaise with SPS over whether this data can (Scotland) Act 2020. be published. At last, our (evidence-based) pleas were being We’ll keep pushing. heeded. It was recognition that, aside from the problems of overcrowding in normal conditions, How will conditions in prisons be prisons were the perfect breeding ground for the monitored during COVID-19 when prison COVID-19 infection; that social distancing was inspections have been suspended? almost impossible; and that the issue was a public We’ve fed into HM Inspectorate’s remote health one, not simply a prison health one. People monitoring framework, highlighting the need for have often spoken of prisons as “incubators” independent assessment of information reported (usually meaning of crime, or addictions). Right by SPS, and await publication of the liaison visits now, that could be all too literally true. framework. It will need to pay particular attention The picture looked promising: whilst prison them for granted, or as importantly, by not to ensuring that the voices of prisoners in visits had been suspended, alternative means of interrogating them properly. This means it is isolation are represented; that levels of self-harm communicating with family via videoconferencing necessary to keep asking the important questions are correctly reported; and that an appropriate and mobile phones were being explored. The and checking that assurances are kept. distinction is made between solitary confinement presumption against the granting of home and medical isolation. We’re also conscious of the detention curfew had been dropped. Regime Where are the mobile phones which level of discretion afforded to individual prison restrictions were being mitigated by increased were promised? officers in the Prisons and Young Offenders phone credit, suspension of TV rental charges Prison visits were suspended on 24 March and Institutions (Scotland) Amendment Rules 2020 and the maintenance of prison wages for those the mobile phones required to maintain family and that checks and balances will be required to unable to work. A remote prison monitoring contact have been purchased, but due to “legal, safeguard against its abuse. framework was being adopted to ensure that security and operational reasons” are not yet in We’re watching. prisoners’ human rights were upheld. use. This does not support the Council of Europe Pressure, formal and informal, in writing and Committee’s statement of principles, under which More questions on social media to the Cabinet Secretary, Justice “any restrictions on contact with the outside How many people are being released on Committee, and HM Inspectorate of Prisons in world, including visits, should be compensated home detention curfew each week, now that Scotland, had not been in vain. The amplification for by increased access to alternative means of the presumption against doesn’t apply? How of messages from the UN Commissioner for communication (such as telephone much use is being made of Human Rights, the Council of Europe’s Committee or Voice-over-Internet-Protocol prison governors’ right of veto to for the Prevention of Torture and Inhuman or communication)”. Howard League emergency releases? What is being Scotland is an Degrading Treatment or Punishment, and the We’re on it. independent Scottish done to minimise the use of remand, World Health Organisation had reaped the charity relying on given that untried prisoners are benefits we had hoped for. Where are the prison- membership fees excluded from early release? specific COVID-19 and donations Howard League Scotland will

ensure that these questions are So, are things really improving? related data? w: howardleague.scot Howard League Scotland is determined that On 27 March, the Scottish Prison e: emma@ answered and will monitor progress any gains made are not squandered by taking Service (SPS) website reported howardleague.scot in the weeks ahead.

May 2020 \ 27 Briefings

Steps to restraining the press This civil courts roundup begins with a judicial review of an order by a sheriff postponing the reporting of a parental rights case, in which the court sets out the proper approach, including the provision of clear reasons for any order made

Civil Court decision was mistaken, the correct approach whether the party is acting for the purpose of was to explain why the decision was made but a trade, profession or business. The purpose LINDSAY FOULIS, SHERIFF AT PERTH acknowledge that that reasoning might be ill of the exception is to protect the weaker party. founded. If a mistake was made, it was better to Only contracts to satisfy a person’s own needs acknowledge that to facilitate its correction. in terms of private consumption are protected as Reporting restrictions consumer contracts. A defender has no onus to In BBC, Petrs [2020] CSOH 35 (19 March 2020) Jurisdiction: consumer contract establish being a consumer. If the contract was Lord Doherty considered the operation of s 4 In Heriot-Watt University v Schlamp [2020] not concluded exclusively with either a private of the Contempt of Court Act 1981. His Lordship SC EDIN 15 (24 February 2020) the issue purpose or a trade, business or professional observed that if a court considered there were was whether the contract to pay fees was a purpose, the contracting party is a consumer grounds for making an order postponing the consumer contract. Sheriff Ross determined that unless the latter purpose predominates. report of any proceedings, it should make an it was. He took the following principles from interim order. That order required to make clear both legislation and authorities. The individual Jurisdiction: monetary value why the court considered that the requirements circumstances of a contract are of central The pursuers in Leafrealm Land v City of of s 4 were satisfied. Its making would be importance. A student undertaking a course Edinburgh Council [2020] CSOH 34 (18 March intimated to interested parties, who could make may, but may not, be a consumer, depending 2020) sought inter alia declarator of ownership application for its recall. on the purpose and content of the contract for of a strip of land and interdict. The question Considering whether to make such an order, the supply of educational services. The status arose whether the action fell within the privative the court should first consider whether reporting of consumer is an objective and functional jurisdiction of the sheriff court. The pursuers gave rise to a substantial risk of prejudice to definition depending on all the circumstances, had averred that the value of the strip of ground the administration of justice. If such a risk was particularly the contract terms and the nature exceeded £100,000 and thus the action could perceived to exist, would an order in terms of of the goods or services. A person cannot be be entertained in the Court of Session by s 4(2) eliminate that risk? If it would, the court deprived of the status of consumer by reason of virtue of s 39 of the Courts Reform (Scotland) required to consider whether that risk could general knowledge or occupation. The definition Act 2014. The true value of the land could not be overcome by some less restrictive means. of consumer is applied by reference to the be ascertained until proof, as it constituted a If the order was the only means, the remaining capacity of the contracting parties, particularly ransom strip. In finding against the pursuers question was whether the degree of risk was after proof, Lady Wolffe determined that tolerable when balancing the interests of fair cause had been shown why the action trial and freedom of expression/open justice. should not either be dismissed or remitted “Substantial” risk of prejudice in s 4 meant Update to the sheriff court. “not minimal”. In deciding whether the order was necessary to eliminate the risk, consideration Since the last article, A & E Investments v Personal bar had to be given to any less restrictive means by Levy & McRae Solicitors (March article) is In Troup v West Lothian Council [2020] CSOH which prejudice could be avoided. The reasons now reported at 2020 SLT 133, Friel v Brown 29 (10 March 2020), the defenders sought to given for the order had to indicate why reporting (March) at 2020 SLT 303, Promontoria argue that a compromise agreement entered would give rise to substantial and unacceptable (Henrico) v Ltd v Friel (March) at 2020 SLT into by the parties to conclude proceedings risk to the administration of justice and why no 321, Autauric v Glasgow Stage Crew (March) before an employment tribunal barred the lesser measure would suffice. Such specification at 2020 SLT 330, LRK v AG (November) at present claim for damages for personal injury was to ensure the court applied the correct test 2020 SCLR 325, Jaworowska-Dziewirz v based on negligence and breach of contract. and to inform interested parties why the order Wojciechowski (January) at 2020 SLT (Sh Such agreements were binding. However the was necessary. Ct) 37, and M v DG’s executor (March) at two actions were different in character and His Lordship also observed that if judges at 2020 SLT (Sh Ct) 11. the grounds of the present action had been first instance, on reflection, considered their excluded from the compromise agreement.

28 / May 2020 as these matters were concerned, fell on the Sheriff Braid refused the motion in hoc statu. Interlocutors defender. There was no question of challenging He considered that there was no authority that In terms of OCR, rule 12.2 a sheriff can the evidential basis of the conviction, and it was competent to award expenses against a correct any clerical or incidental error in any averments regarding its soundness were party who had not entered the process and thus interlocutor or note attached to it. In CWR v excluded. had not contributed to the expenses incurred. LVBR [2020] SAC (Civ) 3 (25 February 2020), An unsuccessful party was only liable for the following a proof on financial provision a Aspects of assessing evidence expenses he had caused the successful party sheriff issued two judgments. The sheriff had In T v English Province of the Congregation to incur. An order could be made against the been invited to issue a judgment on issues but of Christian Brothers [2020] SC EDIN 13 (30 defender in respect of the expenses of raising thereafter bring the matter out procedurally to January 2020), a case for damages based on the action and taking decree in absence. pronounce an interlocutor which gave effect to historic abuse, Sheriff McGowan observed that Sheriff Braid further observed that the the decision on the issues. The Appeal Court matters such as inherent probability, namely correct approach in such instances was not doubted whether this Court of Session practice the more serious the allegation the less likely to endeavour to obtain an award of expenses could be readily adopted in the sheriff court it had occurred, the risk that memory had been to create a right of recovery. Instead the court when regard was had to the Ordinary Cause affected by the passage of time, the loss of should make such order as was consistent with Rules. other sources of evidence, and prejudice, were existing law and practice. Thereafter insurers The second judgment contained two errors. all relevant factors to be taken into account could exercise what remedies they had open An arithmetical one could quite easily be when assessing evidence. There might, as a to them. Motions for decree or joint minutes corrected by the operation of rule 12.2. The result, be a marked deterioration in the quality required to be framed by reference to what second amended two findings of fact and law, of justice. He referred to the observations from could be justified, as opposed to acceding to the two paragraphs in the note and substituted Lord Drummond Young in B v Murray (No 2) requests of insurers. a new paragraph. The purpose of this was to 2005 SLT 982 at paras 21-24. However, a court achieve a certain net figure payable to the still had to determine matters on the basis of defender. The court held that this went far the evidence before it. beyond what was envisaged in rule 12.2. Commercial actions Summary decree The critical issue for Lord Doherty to consider Employment In Grier v Chief Constable, Police Scotland [2020] in W M Morrison Supermarkets v LEM Estates CSOH 33 (20 December 2019) the pursuer (in liquidation) [2020] CSOH 31 (11 March 2020) CLAIRE MCKEE, ASSOCIATE, DENTONS UK sought summary decree. The action was one of was whether any of the pursuers’ adjustments & MIDDLE EAST LLP damages for unlawful and malicious conduct sought to enforce obligations different to those on the part of the defender’s agents resulting sought to be enforced in the summons. This in alleged wrongful detention, arrest and raises an interesting contrast with ordinary The Coronavirus Job Retention Scheme (CJRS) prosecution. Lord Bannatyne referred to the procedure, where such an issue only arises if went live, as planned, on 20 April. The number observations regarding such motions made such an attempt is made after the record closes. of employees reported as furloughed is in the by Lord Rodger in Henderson v 3052775 Nova After considering the adjustments, his Lordship millions. The first reimbursements were due to Scotia 2006 SC (HL) 85. These were, first, that observed that whilst in commercial actions be made on 30 April. Payments will take four the procedure envisaged an issue capable of parties were encouraged to use abbreviated to six days to be processed, to allow HMRC being determined in summary fashion without pleadings, where issues of prescription arose a to carry out fraud checks. HMRC will consider the need for prolonged examination of matters pursuer should take care to make reference in criminal proceedings where appropriate. of fact or law. Such motions were not to replace the summons to each obligation sought to be As at 1 May, the CJRS is extended until 30 debates on questions requiring more detailed enforced. This could be done by incorporating June 2020 (from an initial end date of 31 May). and extensive legal argument. Further, if there a report into the pleadings brevitatis causa. Any entity with a UK payroll (through PAYE) were actual disputed issues of fact to be If such an approach was attacked as lacking can claim, so foreign companies employing resolved, the appropriate forum was a proof. specification, the relevant parts of the report people in the UK through PAYE will be eligible. The complexity of the dispute, with extensive could be identified. While almost all employers were confirming averments and numerous complex issues of furloughs in writing, this is now a requirement. You fact and law, rendered resolution by summary Legal aid must keep evidence of the written confirmation decree impossible. In Ormistons Law Practice v Scottish Legal Aid for five years. Ideally, employers should also Board [2020] SC EDIN 11 (6 January 2020), in seek written agreement, although this does not Prior criminal convictions case readers have missed it, Sheriff Holligan currently appear to be being insisted on, despite The use and significance of s 10 of the Law determined that the defenders were under an the terms of the Treasury direction. Reform (Miscellaneous Provisions) (Scotland) obligation to pay solicitors statutory interest on Act 1968 was considered in Towers v Flaws an account rendered under the legal advice and Workers covered [2015] CSIH 97; 2020 SLT 259, a recently issued assistance scheme. Employers can claim for furloughed employees opinion from 2015. The first defender had been who were on PAYE payroll, and notified convicted of a contravention of s 1 of the Road Expenses to HMRC on a real time information (RTI) Traffic Act 1988. The effect of s 10 was to allow In Clarke v Keenan [2019] SC EDIN 74; 2020 submission, on or before 19 March 2020. the pursuers to introduce the conviction into SLT (Sh Ct) 17 the pursuer in an action for This was amended from an earlier date of 28 the proof and rely on it to reverse the burden damages arising out of a road traffic accident February. Employees who were employed as of proof. To do this, the content of the libel was sought expenses from the defender, who did of 28 February and on payroll (i.e. notified to compared with the averments of negligence not enter the process, the defender’s insurers HMRC on an RTI submission on or before on record. If they matched up, the onus, so far having entered the action as party minuter. 28 February), but were made redundant

May 2020 \ 29 Briefings

or stopped working for the employer prior to confirmed that furloughed workers planning to monetary benefits, including taxable benefits 19 March, can also qualify if the employer re- take paid family-related leave will be entitled to in kind. Similarly, they cannot include benefits employs them and puts them on furlough. pay based on their usual earnings rather than provided through salary sacrifice (including Employers may furlough “workers” who the furloughed pay rate. pension contributions) in the reference salary. are not employees (sometimes called “limb (b) Redundancy pay is expressly excluded, but workers”) if they are paid through PAYE. If not First judgment there is no mention of notice pay. paid through PAYE, they may be able to claim In what must be the first judgment on the independently under the Self-Employment CJRS (all hearings were carried out remotely), Next steps Income Support Scheme (SEISS). Agencies can the High Court issued directions to the Has your business (or your clients’ businesses) furlough agency workers if they are paid through administrators of Carluccio’s Ltd in relation to considered what its next steps will be when the PAYE (though, as the guidance says, they furloughing employees. In doing so, it confirmed CJRS ends? If you would have to consider large should first discuss this with the end client). that administrators are able to furlough numbers of redundancies, have you considered Fixed-term employees can have their contracts employees under the CJRS and how funds paid the collective consultation timetable? renewed or extended during furlough and the out by the scheme are to be treated. With no certainty over how long the current employer will remain eligible for the scheme That administrators can utilise the scheme is restrictions on movement will last, employers grant. As you would expect, the grant stops for a in itself not breaking news. The Government’s need to plan for the worst while hoping for fixed-term employee whose employment ends. guidance expressly states that administrators the best. Furloughed workers can do volunteer work, will be able to access the CJRS provided As a reminder, if a business proposes 20 or and employers can help them find such work there is a “reasonable likelihood of rehiring more redundancies within a 90-day period, it without jeopardising their claim under the the workers”. The High Court confirmed that will trigger the obligation to consult collectively scheme. They can also undertake training. this could (and most likely would) involve for a period of at least 30 days before the first A furloughed employee is also entitled to employees resuming work having transferred to dismissal takes effect. If a business proposes take on a new job, not just continue an existing a buyer following a business sale. The judgment 100 or more redundancies within a 90-day second job, provided that is not in breach of their goes on to consider in detail the existing period, the collective consultation period contract. It appears the first employer can waive statutory mechanism that administrators can increases to 45 days. any obligation not to take additional employment, use to make furlough payments. Critically, funds If your business (or your clients’ businesses) but it would make sense to state expressly that paid out by the scheme are effectively protected does not recognise a trade union, and does this is only for the furlough period. from other creditors and therefore can be used not have a standing body of appropriate Employers may furlough employees on exclusively to pay the furloughed employees. representatives, collective consultation requires and off, subject to the three-week minimum Both administrators and employers should you to organise an election of employee furlough period (which applies for each period welcome the proactive approach demonstrated representatives. Bear in mind that the relevant of furlough). by the High Court in this case. It is hoped that legislation sets out prescriptive rules on Employers may also furlough employees this approach is followed in other cases to find the election process. There are challenges who hold tier 2 visas; this will not constitute a practical solutions to the questions posed by as to how these elections (and subsequent breach of the minimum salary threshold. the CJRS. consultation) will take place remotely. This Guidance also now confirms that the scheme means there is even more reason to start covers company directors with an annual pay Wage costs preparing early and to gear your clients up to period, provided they meet the relevant criteria. Employers can now claim for obligatory doing so. “regular payments”. This includes past overtime, Annual leave and bank holidays fees and commission payments that the Since the Government announced the CJRS, employer is obliged to pay. This would questions have been raised regarding how seem to include things like regular furlough and annual leave interact. Long-sought shift premiums too, although clarification arrived when the Government there is still debate about updated its guidance (on 20 April) to state that that. Employers may not employees can take holiday leave whilst on claim for discretionary furlough leave. bonuses and tips. Employees are entitled to their usual holiday Employers can pay for holidays taken whilst on furlough, in claim for enhanced accordance with the Working Time Directive maternity, and the Working Time Regulations. If employers adoption, are paying employees at 80% of wages during paternity and furlough, they will be obliged to top up the grant shared parental to full normal pay for any holiday days. pay under As regards bank holidays, the guidance the scheme states that, if the employee usually works bank (subject to the holidays, the employer can agree that this is normal scheme included in the grant payment. If the employee requirements usually takes bank holidays, the employer will applicable to either have to top up to their usual holiday pay, ordinary wage or give the employee a day of holiday in lieu. costs). The Government’s policy approach on annual They cannot leave and furlough remains under review. It has claim the cost of non-

30 / May 2020 to advise clients. Nor can any application be and professional debate on these important Family made without the three statutory reports. issues, and it will be of interest to see how this DR DIANNE MILLEN, Even where social workers/psychiatrists are develops in the coming weeks. ASSOCIATE (FAMILY LAW), available to prepare them, conducting in-person MORTON FRASER LLP assessments during lockdown raises obvious issues of risk and access. Practitioners working with older and vulnerable The committee proposes, first, that a sheriff adults may have particular concerns given the “shall” determine any application for interim Human Rights impact of the pandemic on this group and the orders within three days of receipt by the need to protect the rights of incapable persons court. Secondly, application procedure would DAVID BLAIR, SOLICITOR, during the crisis. be modified such that (i) one medical report The Coronavirus (Scotland) Act 2020 would be sufficient; (ii) a suitability report for a addressed immediate considerations by welfare application may come from a “person The COVID-19 pandemic has seen the UK modifying the time limits in the Adults with with sufficient knowledge”, rather than a mental and Scottish Governments impose the most Incapacity (Scotland) Act 2000 so as to stop the health officer (MHO); and (iii) reporters’ enquiries comprehensive restrictions on freedom of clock on existing orders and s 47 certificates. may be conducted remotely. movement ever experienced by UK citizens. The Law Society of Scotland has also provided While much may depend on guidance about For the first time, as a matter of law, the guidance for practitioners on implementing appropriate reporters and the response of public are not permitted to leave their homes power of attorney (PoA) instructions using sheriffs, beyond the pandemic this may also without a “reasonable excuse”, as enshrined in remote communications. facilitate debate about reporting requirements, Scotland by the Health Protection (Coronavirus) Further proposals dealing with more given the issues with availability of MHO reports (Restrictions) (Scotland) Regulations 2020. At substantive issues have now been put forward even before the pandemic. the time of writing it appears that the measures to the Cabinet Secretary for Health and Sport by have widespread public support and it is Society President John Mulholland on behalf of Social work powers generally accepted that such restrictions are the Mental Health & Disability Committee. (The The 2020 Act modified s 13ZA of the Social necessary to control the spread of the virus. writer has no connection with the committee Work (Scotland) Act 1968 to remove the That said, there have also been reports of and writes in a personal capacity.) need to comply with the requirement to take police officers adopting apparently draconian account of the views of the adult, relatives and approaches to enforcement and going beyond Registration of interested parties in terms of s 1(4) of the 2000 the letter of the law in their attempts to promote powers of attorney Act. This will only take effect if regulations are social distancing generally. Practitioners are reporting an increase in passed. While ministers have said this will only While this note cannot hope to address the number of instructions. However, a PoA happen if absolutely necessary, the committee comprehensively the varying human rights cannot come into operation until it has been expresses concern about the human rights issues arising from the lockdown, it will attempt registered with the Office of the Public Guardian implications. The proposals accordingly include to provide a brief overview of some of the key (OPG). While the OPG has transitioned to a provision that no powers conferred by the issues and legal concepts engaged. Focus is homeworking, and registrations are continuing, 2020 Act may be exercised so as to amend restricted to ECHR article 5, although it goes not all PoAs meet the criteria for expedited the terms of, or alter the effect of, s 1 of the without saying that the measures are also likely registration. 2000 Act. to engage the rights to freedom of assembly The proposed interim solution is to allow (article 11) and private and family life (article 8) a PoA to be capable of operation following Advance statements at very least. presentation to the OPG, rather than registration. Advance statements set out an individual’s Under the proposed amendment, authority to wishes about future medical treatment. Freedom of movement act would take effect when the PoA is sent to The extent to which such declarations are Article 5 prohibits “deprivation of liberty”. The the OPG, accompanied by a certificate signed binding in Scotland is not settled, as there is Strasbourg court has previously confirmed that by the solicitor who prepared it stating that no authority and no statutory provision (in detention within one’s home can amount to the PoA is suitable for registration and it is contrast to England & Wales). It is likely that deprivation of liberty (Guzzardi v Italy (1981) 3 appropriate for the attorney to have authority most practitioners would advise clients that EHRR 333). As Strasbourg has consistently set to act. It is envisaged that a form of certification such a statement would be regarded only as an out, deprivation of liberty is a matter of degree would be provided, as well as more detailed indication of their wishes. and is fact specific: see also the Supreme guidance. In the current crisis, treatment decisions may Court’s decision in Cheshire West [2014] AC 896. need to be made in urgent and rapidly changing It is suggested that the extremely restrictive Guardianship and circumstances. While they acknowledge it approach currently in place is such as to intervention orders may be undesirable to legislate on this topic in amount prima facie to a deprivation of liberty. However, not everyone can grant a PoA. The the short term, the committee has proposed a Having established this prima facie breach, “stop the clock” provisions assist existing statutory framework for advance statements one must consider whether the breach is guardians and interveners (although the to the effect that a valid and operative advance permitted within the ECHR framework. Two committee raises an important point about statement shall be binding subject to certain potential justifications arise, neither of which judicial oversight of shorter orders and exceptions. appear to be wholly satisfactory. Article 5(1) deprivation of liberty). However, there remain In conclusion, these proposals cover a (e) provides for the “lawful detention of significant practical and procedural concerns range of practical and principled issues facing persons for the prevention of the spreading of about new guardianship applications. At time of individuals seeking to plan ahead, care providers, infectious diseases”. Enhorn v Sweden (2005) writing it is unclear what constitutes an “urgent” and those responsible for incapable adults. It is 41 EHRR appears to envisage that such application to the sheriff court, making it difficult hoped that they will inform a necessary public restrictions would be applied to those who

May 2020 \ 31 Briefings

were infected. On that basis, Alan Greene has which would apply a general restriction on restrictions by the Scottish ministers and suggested it may not be competent to justify the population leaving their homes. Without reg 2(3) requires their termination as soon a deprivation of liberty against all citizens by addressing those arguments in detail, I would as they are no longer necessary. These way of article 5(1)(e) (blog, strasbourgobservers. simply observe that if there is a question mark provisions should provide some comfort, but a com, 1 April 2020). In that event it would be over the vires of the subsidiary legislation question mark may hang over how necessity open to the UK Government to exercise article creating these restrictions, it would surely is demonstrated as the infection rate declines: 15, which allows derogation from the protected be preferable for the powers to be explicitly drawing clear lines as to what measures remain rights in times of emergency. However, as authorised by Parliament. necessary during a transition back to normality Hickman, Dixon and Jones have pointed out Turning to enforcement, it is vital that police may not be easy. (coronavirus.blackstonechambers.com, 6 April officers to not overstep their powers under the 2020), this would require a possibly unpalatable regulations. The police are entitled in terms Proportionality acceptance by the Government that the of reg 7 to take such action as is necessary to Proportionality – the requirement to go measures in place infringe article 5 rights. enforce the regulations. However this is subject no further than necessary when engaging Assuming that the measures do fall within the to the list of reasonable excuses provided at Convention rights – is, again, applicable both scope of article 5(1)(e), one must still consider reg 8(5). It goes without saying that the police’s in terms of the underlying legislation and in whether they meet the requirements of legality, role is to enforce the law, and not any wider practical enforcement. Currently, it appears necessity and proportionality. Government advice. The regulations do not limit to be generally accepted that the restrictions the number of times a person may leave the remain proportionate, but as we move into a de- Legality house per day, provided they have a reasonable escalation or transition phase the arguments as There are two issues to consider regarding excuse, or what purchases they make during to which restrictions remain proportionate may legality. First, are the legal measures restricting a food or drink shop, or driving to a location become more acute. citizens’ movements lawful? Secondly, are those in order to exercise. Police officers must be Similarly, the power in reg 7(1) to “take such “enforcing” the measures acting within the vigilant not to stray into “enforcing” Government action as necessary” to enforce the regulations, scope of the law? guidance rather than the letter of the law. Such as well as reg 7(4) authorising the use of On the first point, there is an ongoing debate actions would be both unlawful and have a “reasonable force”, must be read in light of this regarding the regulations. Put simply, on one harmful effect on the public’s general consent to requirement. It is plain that any enforcement hand there are those, such as Jeff King of UCL, policing of the lockdown. should begin with the least restrictive who argue that the restrictions on movement measure possible. are within the scope of the emergency powers Necessity afforded to the UK Government by the Public Actions which engage Convention rights should Health (Control of Diseases) Act 1984 and be necessary in order to be justified as an the more or less identical provisions in the infringement. Currently the weight of scientific Coronavirus Act 2020 as respects the Scottish opinion appears to be in favour of the lockdown ministers (ukconstitutionallaw.org, 1 April provisions and the Government has expressed a Pensions 2020). On the other hand, Hickman and others view that they continue to be required. argue that neither of these pieces of primary In order to monitor ongoing necessity, reg COLIN GREIG, PARTNER, DWF LLP legislation explicitly authorise measures 2(2) requires a three-weekly review of the Claiming employer contributions At the time of writing, HMRC has issued seven updates to the original guidance on the Coronavirus Job Retention Scheme (CJRS), first published on 26 March. Several other guides have now been published, including guidance on the extent to which employers can claim for employers’ pension contributions under the CJRS. Broadly speaking, an employer can apply for a grant that covers 80% of the usual monthly wage costs of furloughed employees, up to £2,500 a month, plus the associated employer national insurance contributions and pension contributions (up to the level of the minimum automatic enrolment employer pension contribution) on that subsidised furlough pay. The pension contributions that can be claimed are limited to the level of mandatory employer contributions under the statutory automatic enrolment regime, even where the contributions paid are greater than and/or not being made to an auto-enrolment pension-type arrangement. So, to work out the claim under the CJRS for pension contributions, HMRC explains:

32 / May 2020 IN FOCUS becomes the overriding position for furloughed workers. Employment contract terms should also be checked. In the event that employee pension ...the point is to change it contributions are paid under salary sacrifice Brian Dempsey’s monthly survey of legal-related consultations arrangements, special calculations will of course be required if contributions are to be made to the pension scheme under those sacrifice Capacity and has been extended until 15 measures”. The proposals arrangements. mental health law June. consulted on here are Pensions Regulator easements Sandra McDonald, former concerned with UK-wide Public Guardian for Scotland, Justice in climate policy, though it is expected In a defined contribution pension scheme where the employer’s contribution is more has been commissioned by transition that the Scottish Government than the statutory minimum, The Pensions the Scottish Mental Health will develop its own plans The Climate Change Regulator (TPR) recognises that employers Law Review under John for the one or two ports to (Emissions Reduction Targets) may look to make reductions possibly even to Scott QC to review capacity be sited in Scotland. See (Scotland) Act 2019 contains the statutory minimum level. Before reducing and significantly impaired www.gov.uk/government/ some of the most ambitious pension contributions, employees may require decision making practice by consultations/freeports- statutory emission reduction to be consulted, with a minimum consultation practitioners and clinicians. consultation targets in the world. The period of 60 days. TPR encourages as much See bit.ly/35gaBBw or email Respond by 13 July via the Just Transition Commission consultation as is possible. However, TPR has [email protected], and above web page. has been established to confirmed that under regulatory easement, respond by 29 May. The provide Scottish ministers to endure until 30 June 2020, it will not take submission deadline for the with “practical, realistic, and Impact of COVID-19 regulatory action where there is a failure to main review (consult.gov. affordable recommendations Holyrood’s Equalities & comply with the 60 days, in cases where all the scot/mental-health-law- for action” that will secure Human Rights Committee is following conditions are met: secretariat/review-of-mental- a “just transition”, taking closely monitoring the impact • staff have been furloughed and a claim is health-law-in-scotland/) account of economic and of COVID-19 emergency being made for them under the CJRS; has also been extended social disadvantage. See powers and other measures • the proposal is to reduce the employer to 29 May. consult.gov.scot/just- on equalities and human contribution to the defined contribution scheme transition-commission/ rights. Areas of concern in respect of furloughed staff only (and existing just-transition-commission- Public authority include mental health rates will continue for non-furloughed staff); call-for-evidence/ data sharing provisions, school pupils • the deduction will only apply for the Respond by 30 June via the The consultation on which with additional support furlough period; and above web page. public bodies should be listed needs, social security and • affected staff and their representatives under the Digital Economy socio-economic impacts, have been written to, to describe the intended Act 2017 as able to use the Freeports rurality and criminal justice. change and the effect on the scheme and the information sharing powers in In the wake of Brexit, the UK See yourviews.parliament. furloughed staff. the Act to reduce debt owed Government is proposing to scot/ehrc/impact-covid-19- If these criteria are not met, TPR expects full to, or fraud against, the public set up 10 freeports across pandemic-equalities-human- compliance with the consultation rules. sector (see consult.gov.scot/ the UK to boost trade by rights/ Employers would be well advised to seek digital-directorate/public- way of “tariff flexibility, Respond at any time up to legal advice before looking to make any such changes, as there are several issues that authorities-sharing-data/) customs facilitations and tax 1 January 2021. may need to be addressed as part of such an exercise, e.g. changes may need to be made to employment contracts. The documentation governing the pension scheme may not permit (1) you start with the amount you are claiming No statutory override the reduction of employer contributions, or under the CJRS for your employee’s wages; There is currently no legislation which provides require that a particular process be followed (2) you deduct from that the minimum for a furlough override of any contract or and completed to implement such a change. amount your employee would have to earn trust provisions which apply to member and TPR has noted that it appreciates this is a in the claimed period to qualify for employer employer contributions and accrual of benefits challenging time for employers and, in light of mandatory contributions under the automatic under pension schemes. Employers would that, it will be taking a proportionate, risk-based enrolment regime – this is £512 a month for be well advised to check scheme-governing approach towards enforcement decisions, with periods before 6 April 2020 and £520 a month documentation to establish how furloughing the aim of supporting both employers and for periods on and from 6 April 2020; and would be treated under the relevant scheme savers. (3) multiply by 3%. provisions, and whether contributions and It is to be hoped that in these difficult times Grants for pension contributions can be benefit accrual continue and, if so, on what basis the implementation of the CJRS will afford claimed by employers under the CJRS up in the circumstances. Scheme amendments may to employers some relief in relation to their to the cap, calculated as above, provided the require to be made if the statutory minimum ongoing pension liabilities. Whilst the CJRS and employer pays the whole amount claimed automatic enrolment requirements are to be TPR easements should go some way to assisting to a pension scheme for the employee adopted, unless there is further legislation employers, employers need to be sufficiently as an employer contribution. which provides that the statutory minimum informed to take full advantage of them.

May 2020 \ 33 Briefings Secure digital signatures: moving forward in a crisis

Secure digital signatures using the Law Society of Scotland’s smartcard offer a safe way to progress transactions during the coronavirus restrictions, and the profession now has the opportunity to transform the way it does business

Property JANA BERGER, SMARTCARD CO-ORDINATOR, LAW SOCIETY OF SCOTLAND AND PROFESSOR STEWART BRYMER, BRYMER LEGAL LTD AND UNIVERSITYOF DUNDEE

The current situation around the COVID-19 pandemic presents a massive challenge for the legal profession in how to conduct business and transactions when the usual means of doing so are no longer available. Electronic communications are of course a way to deal with it, but there has historically been a reluctance to simply transfer everything to email and attachments. The core of the issue is this: How do I trust what I see in front of me? And how do I prove its validity? These questions are perfectly fair. However, some of the arguments solicitors encounter when using their digital signature are not the answer. Replies like “We are not set up to accept digitally signed offers”, and “The law has not yet been changed to permit digital signatures”, not only illustrate the reluctance, but a downright misunderstanding of the inherent value and possibilities digital signatures have to offer. The purpose of this article is to “debunk the myths” and set the scene for the wills and testamentary writings, which must be of the Law Society of Scotland has published a broader use of secure digital signatures. created and signed in traditional form). guidance note on electronic signatures: There remained a doubt about whether it www.lawscot.org.uk/members/business- Legislative backdrop was competent to scan in your “signed on support/electronic-signatures-guide We, in Scotland, were not the first jurisdiction to paper” document and deliver it by email. In The highest level of electronic signature is a introduce smartcards for members of the legal addition to permitting execution in counterpart, qualified electronic signature (QES) – which is profession. Other countries in Europe pioneered the Legal Writings (Counterparts and Delivery) the type of digital signature that is issued with the initiative, especially Italy and Spain. The (Scotland) Act 2015 removed this doubt, with the the Society’s smartcard. It is “qualified” because Law Society of Scotland saw the benefits of result that electronic delivery is competent for several stringent conditions need to be fulfilled the smartcard, and in particular the secure documents created and signed on paper as well to obtain one. One of these conditions is that the digital signature, and took steps to introduce as for electronic documents. means to use this signature, i.e. the underlying these here. This resulted in the Requirements certificate on the chip and the PIN code needed of Writing (Scotland) Act 1995 being amended What is a qualified to apply it, are under the sole control of the by the Land Registration etc (Scotland) Act electronic signature? signatory at all times. This means that only the 2012 and the Electronic Documents (Scotland) Everyone is familiar with simple electronic signatory actually named in the QES can sign Regulations 2014, with the result that Scots law signatures already – typing your name at the the document in question. In addition, once the now confers equivalent status and standards bottom of an email is exactly that. There are signature is applied, the document is basically of validity on documents created in electronic several levels of electronic signatures, and set in stone. The secure digital signature, the one form in compliance with the new law to those depending on what is being signed, different that counts, is embedded in the bits and bytes of given to paper documents (with the exception of types can be utilised. The Technology Committee the document in its electronic form. Any attempt

34 / May 2020 to change the document or its content will invalidate the signature and it will show as such. This is the essence of the security afforded. Pen versus keyboard PSG: progress As to proving the validity of the applied signature, every electronic signature can be interrogated, be it by checking the metadata during the pandemic of an email header or double clicking on the signature line in an electronic document. An update from the Property Standardisation Group, including The difference is the amount of information documents dealing with COVID-19 related matters available. Metadata from an email will show IP address and timestamp, but it will not prove The Property Standardisation Group is document can be submitted via the digital the name of the person who really typed it delighted that Kirsten Partridge, partner submission system, rather than 14 days up and sent it off. QES interrogation provides at CMS CMNO joins the PSG as of 1 May after completion. all sorts of information, e.g. validity status, 2020, replacing the inimitable Douglas signatory, timestamp, underlying certificate Hunter as he retires from practice. Douglas Offer to grant a lease data. In addition, all this information does not joined the PSG in 2002 shortly after it was In addition to our COVID-19 drafting, we disappear when the mail server gets cleaned founded, when Hamish Hodge, one of the have published an offer to grant a lease, later on: it is part of the signature and available co-founders, retired. We will greatly miss to be used alongside the PSG leases. The as long as the document exists. What’s more, Douglas’s contribution over the last 18 offer mirrors the format of the PSG offer to no set-up is required to validate a QES on the years and are grateful to him for sharing sell. It is drafted on the basis that the draft computer. Where previously recipients looked his depth of knowledge and transactional lease annexed to the offer is one of the to check that the document was signed at the experience. Just as importantly, we’ll suite of PSG leases and uses terminology bottom of the page, they now simply click the miss his humour and fantastic attention consistent with the PSG leases. signature on the screen. to detail. We welcome Kirsten and are The offer to grant a lease provides It is fair to ask: Why do we still trust that looking forward to the new dynamic in our optional wording: a paper form sent in the mail is really coming collaboration as the PSG anticipates its • for suspensive conditions; from a ? Because it says so on 20th birthday in 2021. • for a side agreement to be issued on the the letterhead? How can we prove the wet grant of the lease; signature at the bottom is really that of COVID-19 documents • for the tenant carrying out fitting out a solicitor? Because the name appears in The PSG continues to support works in accordance with the print below the line? Because it’s always the profession during the terms of the draft PSG licence been this way? COVID-19 lockdown and we for works annexed to the Less than 40 years ago, paying in cash are meeting virtually to offer; was the norm for everyday transactions, progress our projects. We • for a rent deposit to be paid be it at the grocer’s, the cobbler’s, or the have created a COVID-19 and documented using the pharmacy. Now, everyone has a debit card page on the website to store PSG deposit agreement; with chip and PIN, and uses it for one specific transactional documents • for a guarantor of the purpose. The smartcard with its digital which may assist at this time, tenant’s obligations using the signature is no different. The profession including: PSG guarantee; needs to move away from the notion that • two rent concession letters: one • for a rent-free period. only paper is true and a pdf scan of a for paying rent monthly and the other The PSG consulted widely before signed document is the maximum electronic documenting a reduction or suspension of finalising the offer to grant a lease and we involvement possible. We all need to view rent; are grateful to our consultees for their input, the current crisis as a challenge (and an • trust clause wording and guidance, which improving the final version of the document. opportunity), and embrace it to move forward. may be useful with the partial closure of the Will it be as easy as flicking a switch? Probably Land Register application record and the Community right to buy land not. Workflows will have to be restructured consequent delays in getting dispositions We have updated the offer to sell to include or at least tweaked, the idea of only trusting registered; drafting for the latest community right paper and wet signatures must be re- • a power of attorney allowing solicitors to to buy under part 5 of the Land Reform evaluated, and going back to the way things sign documents on behalf of clients, which (Scotland) Act 2016: the right to buy land were before, once this crisis is over, is simply may be particularly useful during lockdown; to further sustainable development, with not going to be an option. However, despite • guidance on changes to consider to drafting similar to the wording for the right the initial hurdles, this is an opportunity for the the offer to sell in light of lockdown, to buy abandoned, neglected or detrimental legal profession in Scotland to transform the looking particularly at any time limits in land. We have moved all of the community way it does business in the time to come. the missives. The registration clauses interests wording into a part of the schedule, The future is digital: the future is now! will need to be reviewed, for example as the wording has become so lengthy. amending the post-completion clause For more details and step-by-step guides on to refer to registration of the As ever, we welcome your comments on the how to apply and verify the smartcard’s digital within 14 days after the date on which documents or suggestions for future projects. signature, see the Society’s website at either the application record for the Land Contact details for the PSG members can be www.lawscot.org.uk/members/professional- Register of Scotland fully reopens, or the found on the PSG website: www.psglegal.co.uk support/smartcard

May 2020 \ 35 Briefings

In-house, from home

During the lockdown, a series of virtual round tables has allowed in-house lawyers to share experiences of new ways of working and what they may mean going forward, as in this account of the two latest sessions

supply chains and customers) elsewhere underline the uncomfortable “them In-house in the world clearly had a better sense and us” feeling between those who BETH ANDERSON, of what was to come before many of us. were now likely to enjoy more flexible HEAD OF MEMBER Chinese operations were hit early and working policies for the foreseeable ENGAGEMENT – mobilised quickly. Italian colleagues future, and those whose roles simply IN-HOUSE LAWYERS, LAW SOCIETY OF SCOTLAND queried why their Scottish counterparts don’t allow for it. Not everyone has were still travelling into the office, and equal access to this new “benefit”, and some businesses took early decisions there will be an ongoing challenge to mandate working from home policies around treating colleagues fairly. One of the main themes from the first in as a result. One participant shared that a recent our series of virtual round tables for in- One participant particularly internal system upgrade had been house lawyers was collaboration. In our highlighted the benefit of having a global instrumental in ensuring that the team second and third sessions, held during operation from a wellbeing perspective. moved relatively easily to remote April, an impression of relative positivity As colleagues who had “been there, working. Had the pandemic hit even last continued, with the standout word of the done that” were able to share their own year, the organisation would have faced second event being “pragmatism” and strategies for coping with confinement, serious challenges. the third concentrating quite strongly on there was a sense that the challenge Two solicitors working in the public finding a way forward. of adapting to lockdown was lessened sector commented that while their Joined by around 20 in-house slightly. Another commented on cultural teams and organisations had been counsel across the two events, differences. In China, 100% compliance relatively traditional in their approach to again I gained an insight into how with authority is simply expected. The working practices, this crisis had created different sectors, in-house teams almost unquestioning obedience with the perfect opportunity for operational and jurisdictions have reacted to the which our own population has also and mindset change. For both, attitudes coronavirus crisis. complied with a set of unprecedentedly had shifted quickly and, from a practical strict curbs on behaviour has perhaps perspective, technology had relatively Home and abroad been helped along by watching things easily kicked in to take the place of Similar to the first, these two sessions unfold elsewhere in the weeks and paper and face-to-face meetings. kicked off with participants sharing their months before. Another public sector solicitor shared a experience of how their teams were For those with and without more problematic transition for the team. adapting to the current situation. In international colleagues, there was an They simply did not have the technology particular, there were some interesting almost universal agreement that the to get all colleagues working at normal insights from those working across a move to homeworking for office-based capacity. She was, however, keen to number of jurisdictions. The effects of staff had been relatively painless. Those stress that essential services were most COVID-19 were obviously felt much in-house solicitors with colleagues certainly still being supported. The things earlier in other countries, and in-house working in manufacturing, processing that had to get done, were getting done. solicitors with colleagues (or even and frontline services did, however, Getting the job done – that thread

36 / May 2020 ran significantly through our second How to move on? and autonomy amongst colleagues. This session, with participants coming In our third round table session, the unique situation had propelled the project back time and again to the theme of discussion rounded out with participants forward “at supersonic speed”, and meant pragmatism. As one participant put it, sharing their positive perspectives the team could take advantage of a there may be a perfect legal answer, but and some ideas about moving out of number of changes they had wanted to in the current circumstances colleagues lockdown. One participant commented make anyway. Concerns around clunky generally required a quick answer and that his organisation had made “five technology and a general lack of IT a significantly more pragmatic one. years of cultural change in the space expertise had not borne out in reality. Governance was mentioned often, and of a few weeks”. In practical terms this The final thoughts in our third session the need not to let it get in the way. As meant that the business was already related to more immediate post- part of this pragmatic approach, reliance looking at office floorspace – simply put, lockdown plans. Rotas, shift patterns, they would no longer budget for one office layouts and occupancy levels desk per staff member. were all discussed. These, in themselves, “There was almost universal Another participant agreed. As a indicated a cautious optimism towards agreement the move to home startup, she was part of a dynamic restrictions being lifted. All agreed that and tech-savvy team. The crisis hadn’t getting back to a normality of sorts working for office-based staff had a huge impact on an already agile would take far longer than implementing had been relatively painless” group of colleagues, but the enforced lockdown had taken and there was still homeworking had actually resulted in no clear path towards this. However, just increased productivity. The business was as those with colleagues outside the UK on good working relationships (both actively considering whether they needed had shared the ripple effect of the early internal and external) and good faith has to move back into their shared office impact of the pandemic, encouragingly, been more important than ever. The in- space once restrictions were lifted. For they were also able share how things house team cannot be seen as a blocker, finance colleagues, this bold new future of (in China at least) were now returning to especially not now. The crisis may increased remote working would translate something close to pre-lockdown. ultimately become an opportunity for into all-important cost savings. Normality will resume for us all in the in-house legal team to demonstrate For one organisation, agile working time. However, it seems it will be a “new an ability to get work done faster, had only really been introduced at normal” and some of the things we’ve smarter and more efficiently. the start of 2020. There had been learned to improve during this enormously apprehensive discussions about trust challenging time will remain.

misconduct. The long period of time during respondent and fined her £10,000. Scottish Solicitors’ which the secondary complainer had sought The Tribunal noted that the offence Discipline Tribunal a response from the respondent was critical. followed a car park collision when the The Tribunal also noted with concern that in respondent was parking before attending WWW.SSDT.ORG.UK the one case, the respondent had received court. She failed to provide a breath test at money from SLAB and did not pass on the the police station. Failing to cooperate with element due to the secondary complainer. the police in relation to providing a specimen Neil Brennan Barnes Even if there had been a dispute regarding of breath in these circumstances was a A complaint was made by the Council of payment, he retained the funds and did serious and reprehensible departure from the Law Society of Scotland against Neil nothing about it. The Tribunal considered the standards of competent and reputable Brennan Barnes, solicitor, Glasgow. The that the misconduct was at the lower end of solicitors. She was required by law to Tribunal found the respondent guilty of the scale and the finding of misconduct and provide a sample and failed to do so. This professional misconduct in respect of his censure was sufficient to mark the gravity conduct was likely to bring the profession failure to settle fee notes, and his breach of of the offence, protect the public and uphold into disrepute. It brought her integrity into rules B1.9.1 and B1.14.1 of the Law Society of the reputation of the profession. question and was therefore in breach of Scotland Practice Rules 2011. The Tribunal rule B1.2 which provides that a solicitor’s censured the respondent. Martha Anne Rafferty personal integrity must be beyond question. The respondent failed to settle his A complaint was made by the Council of The Tribunal was concerned that this was Edinburgh agent’s fee notes for a long the Law Society of Scotland against Martha the respondent’s third conviction for road period, failed to communicate with that Anne Rafferty, Berlow Rahman Solicitors, traffic matters. It considered that it would company effectively about two accounts Glasgow. The Tribunal found the respondent not be appropriate simply to censure her and failed in his duty to act with other guilty of professional misconduct in respect again. The Tribunal imposed a fine of £10,000 regulated persons with mutual trust and of her conviction of a charge under s 7(6) of to mark the seriousness with which the confidence. The Tribunal considered carefully the Road Traffic Act 1988 together with two Tribunal viewed the respondent’s conduct the level of culpability in the case and was previous convictions under s 5(1)(a) and in the context of the previous findings of satisfied that it met the test for professional s 7(6) of said Act. The Tribunal censured the misconduct.

May 2020 \ 37 In practice

Welcome for £2.2 million support package

broad welcome individual solicitors will save up has been given by to £380 compared to last year solicitors to the and save many law firms tens of A Law Society of thousands of pounds. Scotland’s £2.2 “I want to be clear: this has not million package of been an easy package to agree and financial support in response to the has required tough choices to be coronavirus. made. We will be cutting deep into The three elements of the the Society’s reserves. It will require package comprise: several projects to be paused. • reducing the 2020-21 practising However, this package underlines certificate fee by 20% (subject to the Law Society’s determination to agreement at this month’s AGM); do all it can to help and support the • reducing by 20% the accounts fee profession weather this storm.” paid by law firm partners; While some solicitors questioned • reducing to zero the client whether the package went far protection fund contribution for law enough, other comments posted firm partners (the Society believes recruitment and plans other savings a quarter of solicitors in private on Twitter included: “Wholly the fund has the reserves to meet all for the current operating year. practice have been furloughed, unexpected but very much valid claims over the next 12 months). President John Mulholland said: including over 200 trainees. This is appreciated”; “a very welcome Balancing these measures, “We know that 90% of law firms why the Law Society is responding initiative”; “a sign that the Society the Society has furloughed 20% have faced a reduced turnover as a with a significant package of financial appreciates how things are on the of its own staff, put a freeze on direct result of coronavirus. Almost support at this critical time. It means high street”.

SYLA AGM goes online Advice flags COVID-19

The Scottish Young Lawyers’ Association will hold its AGM online AML risks on 28 May 2020 at 6pm. It will take place over Zoom, due to The UK Legal Sector Affinity Group, that criminals may seek to exploit COVID-19 and in accordance with the recent amendment to its which includes the Law Society during the upheaval; challenges constitution. Dial-in details will be of Scotland, has jointly published and factors to consider in respect of emailed to those who have signed up an advisory note highlighting key non-face-to-face identification and to attend 24 hours anti-money laundering risks and verification, and associated digital in advance. challenges for the legal profession identity services; and other issues For more details on standing associated with the COVID-19 crisis. in respect of policies, controls and for election, and to sign up, visit It also includes information to help procedures, data protection and www.eventbrite.co.uk/e/syla-virtual- the profession comply with ongoing information security. agm-2020-tickets-104027878184 obligations under the Money Access the note at www. Laundering Regulations. lawscot.org.uk/news-and-events/ The note covers some of the law-society-news/covid-19-lsag- particular risks and vulnerabilities advisory-note/

Notifications AGM to run as virtual meeting

ENTRANCE CERTIFICATES Due to the COVID-19 pandemic, audio and video call details. appointment of the auditors, and ISSUED DURING MARCH/ the Society’s 2020 annual general The agenda and supporting the proposed reduction to the APRIL 2020 ALCORN, Paul Donald meeting will be held via audio and information are available on the practising certificate fee for 2020- ASGHAR, Safina videoconference only, on Thursday Society’s website. The President, 21. There will also be a discussion EVANS, Danielle Gail 28 May at 5.30pm. There will be no John Mulholland, will give an on draft practice rules amending HAFIZ, Madihah McINTOSH, Lauren physical meeting. address reviewing his term in office rule D.5 on incorporated practices. McLEOD, Fezile Bongiwe All members are invited, but and chief executive Lorna Jack will Advance voting is allowed, and RASUL, Sohaib anyone wishing to attend must update members on the current will be open online from 12 noon on REILLY, Martin Joseph register in advance. To do so, please operational plan. Tuesday 19 May until 12 noon on ROBBINS, Mark John SAVAGE, Gillian email [email protected] by Members will be invited to vote Tuesday 26 May. Friday 22 May at 12 noon. Only on the approval of the annual Members will receive an email by registering will you receive the report and accounts, the re- when voting opens.

38 / May 2020 PUBLIC POLICY HIGHLIGHTS

The Society’s policy committees analyse COVID-19 pandemic, and is not generally in where a person breaches certain notices, it is and respond to proposed changes in the law. favour of any adjustment to sentencing powers. noted that the penalties applied differ across Key areas are highlighted below. For more It believes that the option to retain current court England, Scotland and Wales. The Society’s information see www.lawscot.org.uk/research- facilities but enable social distancing during jury response advocates a consistent approach to and-policy/ trials provides the basis for a practical, workable sentencing provisions. solution. In conjunction with this, the Society Adults with incapacity supports having a smaller number of jurors, Energy Efficient Scotland The Mental Health & Disability Subcommittee preferring a minimum of seven and allowing The Property Law Committee and Property & has been monitoring the changes made under for up to two jurors to become ill during a trial. Land Law Reform Subcommittee responded to the Coronavirus Act 2020 and the Coronavirus However, it does not support a reduction from the Scottish Government consultation which (Scotland) Act 2020 to the legal framework for 15 jurors for High Court trials. outlined proposals aimed at improving energy adults with incapacity. In addition to issuing efficiency and reducing the demand for heat in the Society’s own temporary guidance, the Medicines and Medical Devices Bill owner occupied homes. subcommittee believes there is an opportunity to The Criminal Law Committee responded to the These proposals form part of a range of wider build on this through legislative reform, and laid Public Bill Committee’s call for evidence, having issues concerning housing stock quality. It is out proposed amendments to the Adults with previously sent out a briefing at the second important to consider where the responsibility Incapacity (Scotland) Act 2000 in a letter to the reading in March. lies for improvement of housing stock and how Cabinet Secretary for Health and Sport. It recognised that the bill provides individual owners can be encouraged to keep Described in the family law briefing on opportunities for the pharmaceutical industry, their property in good repair. Recent work on p 31, these proposals aim to provide maximum given that it is a major piece of post-Brexit tenement maintenance, and cladding, raises support to the health and care sectors in legislation. However, as the bill supports the similar issues. The committees noted that the response to priorities articulated by those development of medicines and medical devices, proposals have the effect of charging individuals sectors. The subcommittee views them as vital in it stressed that scrutiny is required given to make improvements to their property in safeguarding vulnerable members of society. the implications arising from the potential order to achieve a Scottish Government aim. use of these powers. Achieving the balance It is important that sufficient support is put in Solemn criminal trials between patient safety and access to medicines place for individual homeowners, and that it is In order to respond to the Scottish Government’s and medical devices is down to secondary recognised that in some cases there may be discussion paper, the Society set up a working regulations, where further clarification is significant costs involved in bringing a property group chaired by the Criminal Law Committee essential. The committee requested it be noted up to the required standard. convener, with members representing COPFS, that during the UK exit discussions there was Energy efficiency is a key feature for future defence solicitors, local bar associations and recognition of the need to develop common housebuilding. However, the importance was solicitor advocates together with academic, lay frameworks that respected devolution in stressed of having sufficient resource and and judicial representation and support from the Scotland, Wales and Northern Ireland. These are knowledge within local authority planning and Faculty of Advocates. highly regulated areas of policy implemented housing departments to support housebuilders Its response informed a briefing issued to by EU directives, regulations and decisions and to deliver appropriate outcomes. the Cabinet Secretary for Justice and MSPs. were transposed by UK and Scottish Acts and While the Society does not view retaining the subordinate legislation, as well as administrative, The Policy team can be contacted on any of the status quo as feasible, it does not support the non-statutory arrangements. matters above at [email protected] introduction of judge-only trials during the In relation to the creation of criminal offences Twitter: @Lawscot

SLCC insists on levy rise OBITUARIES JOSEPH FRIEL (retired solicitor), Uddingston Solicitors will have to pay an commented: “Over the past few On 23 March 2020, Joseph Friel, formerly partner and increased general levy for 2020-21 years we have made significant latter consultant of the firm Friels, Uddingston. to the Scottish Legal Complaints improvements in our efficiency, AGE: 87 Commission, despite an urgent appeal but each year these have been ADMITTED: 1953 from the Society for a cut to recognise outstripped by the increased the financial pressures facing the number and complexity of incoming THOMAS GRAHAM BANNIGAN (retired solicitor), Glasgow profession. complaints, as well as other costs. Our On 28 March 2020, Thomas Graham Bannigan, formerly The SLCC’s final budget for the year current prediction is that this trend sole practitioner and latterly director with Liu’s Legal from 1 July confirms the proposed will continue.” Solutions Ltd, Glasgow. 3.5% rise, bringing a general levy of He added: “We know any increase AGE: 83 £492 (up from £475) for principals in is always unwelcome, and particularly ADMITTED: 1959 private practice, £400 (up from £386) so at this time, but the number of JAMES HALDANE TAIT SSC (retired solicitor), Edinburgh for employed solicitors, £189 (up from complaints has continued to rise and On 9 April 2020, James Haldane Tait SSC, formerly partner £183) for advocates, and £120 (up from many drivers of cost in our system of the former firm Robson McLean, Edinburgh. £116) for in-house lawyers. Its only have been above CPI. We are obliged AGE: 89 concession is to offer to accept the by law to make sure that the levy is ADMITTED: 1953 levy in two instalments, subject to a ‘sufficient to meet our expenditure’.” DONALD RUSSELL (retired solicitor), Alloway formal agreement, which would allow In response the Society accused On 18 April 2020, Donald Russell, formerly partner of the the professional bodies to consider the SLCC of being “tone deaf” to firm Lawson, Russell & Co, Prestwick. flexible arrangements for collection. the financial crisis facing the AGE: 68 Chief executive Neil Stevenson profession. ADMITTED: 1975

May 2020 \ 39 In practice

WORLD WAR 2 Why should the legal profession remember? As we mark the VE Day anniversary, we should recall the actions of lawyers in authorising the atrocities of the Nazi regime, and how we should now work to ensure that law is not misused in this way again, Gillian Mawdsley writes

he 8 May 2020 vulnerable groups such as the commemorates elderly can be clearly seen. the 75th Heed warnings from Nazi anniversary of the Germany, where the Supreme Court T end of World took no action as lawyers were War 2 and the convinced of the legitimacy of what downfall of Nazi Germany. This date was happening and supported the is important not only for those who regime. Scrutiny of draft legislation survived such turbulent events, but now – and as we return to the “new for those of us whose knowledge of normal” – is vital. the Nazi regime derives from the On a positive note, crucial chilling testimonies of those in Scotland’s fight against survivors. As their number declines, discrimination, an important we owe responsibilities to them to milestone was reached with the remember the Nazi atrocities introduction of the Hate Crime and epitomised by the Final Solution, excluded Jewish legal colleagues on moral grounds but, legally Public Order (Scotland) Bill. This with the wholesale discrimination from practising professionally, speaking, he has no case; he must, bill consolidates by modernising against and elimination of groups thereby offering business at his own risk, choose between his our mismatch of existing hate such as the Jewish people. opportunities to other colleagues. (legal) duty to obey the law and his crime laws and adds to the number The “unimaginable horror” of More than half of the delegates (moral) duty not to do or abet evil” of groups afforded protection. discovering sites like Belsen as the attending the Wannsee Conference (from the account of this debate in However hatred arises, be it war approached the end, must not in 1942 to co-ordinate and resolve “On the validity of Judicial Decisions anti-Semitism or racism, sexism be allowed to repeat. specific questions around the in the Nazi Era” (1960) 23 Modern or gender orientation, it cannot be We reflect on the role that implementation of the Final Solution Law Review 260). tolerated. This keynote legislation members of the legal profession were lawyers, or had had a legal should ensure its eradication. undertook in implementing these education. What can we do? On 8 May 2020, we recall how policies then, as we seek now to Though many lawyers were Turn now to COVID-19, where lawyers and the law assisted in fulfil our statutory responsibilities complicit in the new regime, there scrutiny of the legislation being forming and delivering National to work in the public interest were those who lost their lives passed by the Government is Socialism policies. As flags are waved and promote the rule of law in in opposing it, such as Adam von critical. We respect the “emergency” and veterans such as Captain Tom creating a fairer Scotland. The legal Trott zu Solz, a Hitler bomb plot justification for restrictions on Moore are lauded, don’t forget that profession must learn from our conspirator. our individual liberties such as without lawyers, whether in the civil German predecessors to ensure Ultimately, more than 400 freedom of movement, screening service implementing Government that genocidal regimes cannot recur. decrees and regulations were and isolation, prohibiting events, policies, in practice or in court, the Our roles in legal scrutiny illustrate passed in the Third Reich affecting shutting down of courts and Final Solution might never have been how we can support measures to the Jewish people, depriving them delaying trials. However, such achieved. As the US Supreme Court prevent such oppression. of their rights, livelihoods and powers carry an inherent risk of Justice Stephen G Breyer stated in assets. These were achieved with abuse by increasing executive Lawyers Without Rights: The Fate Law and the Final Solution “legal” authority derived from the power, enabling governments of Jewish Lawyers in Berlin after The actions of the legal profession Enabling Act (the “Law to Remedy to make decisions and 1933, “it is important that we in Germany were crucial. the Distress of the People and in impeding access and future generations The judiciary, traditionally tasked the Reich”), emergency legislation to information remember the misuse of with upholding rights, ensured that passed on 23 March 1933. Though restricting effective laws in Germany and the policies of National Socialism such laws might be considered oversight. The how it permitted were applied in German courts. to be fundamentally immoral, the effects of isolation a society to effectively Those such as Roland Freisler, legal philosopher Hart argued that and discrimination on purge a significant group the People’s Court judge, acted as “the courts [had] no alternative of lawyers solely because judge, jury and prosecutor. but to apply a properly enacted of their religion…It is about Gillian Mawdsley, Lawyers drafted and statute however evil its aims may Policy team, Law misuse of law”. implemented the new laws that be. A victim of such law may rebel Society of Scotland

40 / May 2020 In practice

CYBER SECURITY How to videoconference – and stay safe With videoconferencing now a standard way for law firms to run meetings, David Fleming, chief technology officer at Mitigo, explains how to maintain proper security

s the COVID-19 pandemic present on a videoconference can be easily broke, people began to work recorded by the attendees. Consider the control from home and firms moved to you have on attendees, especially when ways of remote working, there presenting highly confidential or personal data. A was a rush to dust off existing 2. Privacy settings: Some service providers videoconferencing applications may actually be using the platform to gather and download freeware online. This was quickly information about you and your clients/contacts. followed by stories that spread panic about the If you can’t manage this through privacy settings, security risks of virtual meetings. you should change providers. Here’s a brief summary of the guidance we 3. Data loss prevention: Some services give our clients to stay secure. If you have any are designed to facilitate data sharing and doubts, consult an expert. collaboration across internal teams. Make sure you understand how to configure guest users’ Service choice access and permissions to these services. We focus first on the conferencing application 1. Secure your access credentials: These Again, this is a crucial aspect of security, you are already paying for (this may well be need to be strong and not reused elsewhere. so get expert advice. Microsoft Teams, which is widely distributed Cybercriminals use information gathered from with Office 365). But, ultimately, it does differ by previous data breaches to access conference Spying and spoofing business: you need to choose the service that services where the same passwords/codes Cybercriminals adapt their approach to match meets your requirements, which for law firms, are being used. If you believe they have been the opportunity. They know that suddenly, must include a high level of security. compromised, change them immediately. confidential conversations are happening 1. Start with a risk assessment: The choice Highly sensitive meetings should have unique virtually, giving them the motivation to phish (and often the cost) should be aligned to the risk passwords and not rely on one-click links. for access credentials and deliver malware, and damage which could result if your virtual 2. Greet your guests: Before you launch via videos or attachments, to “spy” on you meetings were accessed or compromised by into your conference call, make sure you via your laptop. cybercriminals. There are bank grade solutions have the correct attendees. You can control 1. Scrutinise inbound requests: Fraudsters that may be required, but this is generally attendees and enforce a “lobby” entry on most are actively phishing for videoconferencing login disproportionate. videoconferencing software, where you can allow credentials. You should maintain a “zero trust” 2. Avoid free tiers of service: The cost of users to enter the meeting as they present their mindset for inbound requests to join meetings or upgrading to business versions that have great identity. Where possible, get each attendee to enter credentials. Always question the validity security features may be modest, so use them. greet everyone, and check out attendees whose of these kind of requests, and verify if you 3. Upgrade your application: If you are using cams are not switched on. Consider locking entry have doubts. a “legacy” application, make sure you upgrade to once your meeting has started. 2. Anti-virus (AV) software: Cybercriminals’ the latest version of the software. Many solutions 3. Service configuration: This can vary from use of spyware will increase during this require you to download an application on your having to “accept” attendees into the meeting, to pandemic. Keep your AV software up to date local machine. This needs to be brought up whitelisting the computers that have “permission” and well configured to mitigate against this to date, as older versions will have known to join any meeting. This is the key control to malicious software. security vulnerabilities which are easily keep the security risks of videoconferencing 3. Connection security: While paid-for services exploited by criminals. within your risk appetite, so take specialist will have a level of encryption, law firms should advice here. consider making internet connections more Videoconferencing etiquette secure, for example with the use of virtual Like any software which is accessed remotely, it Data and privacy private networks. is the way it is used and configured that makes Consider the impact of a data breach on you the biggest difference to security. We find that and your clients, and how you mitigate the Mitigo is part of the Society’s Member Benefit the security features are almost always left at risks by managing data and information as scheme, offering technical and cybersecurity the default setting or even disabled altogether, part of the process. services. Find out more at www.lawscot.org.uk/ leaving you wide open to attacks. 1. Consider your audience: The content you members/member-benefits

May 2020 \ 41 In practice

ANNUAL REPORT Platinum edged: the year that was The current COVID-19 turmoil, and the uncertain outlook ahead, overshadow what was a year of some achievement in 2018-19, as revealed in the Law Society of Scotland’s newly published annual report 17

uch of the to support and guide our 12,000 Building a fairer and simpler priority over the coming year. 2018-19 operating members through these difficult legal aid system is essential, and “Back in January, we kicked year focused on and unprecedented times. in our response to the Scottish our platinum celebrations off by the review and “Throughout our last operating Government consultation on legal welcoming more than 200 women M reform of legal year, the review and reform of legal aid reform, we highlighted the to our offices at Atria One to have services services regulation in Scotland importance of making the legal aid their photograph taken as part of regulation, following the publication continued to play a major part in system more efficient and easier to the First 100 Years project. of the Fit for the Future report in late our work. We continued to advocate navigate for members of the public “Further events followed 2018. The Society continued to for change that will better serve and solicitors alike. throughout the year, culminating engage with members, stakeholders the public and the profession than “Of course we also celebrated in our platinum themed annual and Government, and joined the the creation of a single regulator the Law Society’s 70th anniversary, conference in October. Scottish Government’s working of legal services, one of the Legal and it was an honour to have been “While not quite meeting all group on the matter. Services Review report’s main Vice President and then President of our ambitious membership In addition, 70th anniversary recommendations. We engaged through the period of celebration.” growth targets, our numbers did celebrations, Brexit and Anti-Money extensively with our members, increase across all categories, Laundering Regulations all played stakeholders, other professional Lorna Jack, with practising members key roles in the Society’s work. bodies and MSPs and we sit on chief executive surpassing the 12,000 The Lawscot Foundation secured the Scottish Government’s working “Our profession is mark for the first time. two new sponsors and welcomed group, whose aim it is to reach a currently facing a We also launched two eight new students to the scheme, consensus on models which will historic challenge, new categories – Legal bringing the total number of deliver reforms to legal services with the coronavirus Technologists and Fellows, students supported to 25; and regulation. We expect the agreed pandemic requiring the latter for retired members. an exciting new partnership with models to be put out to consultation flexibility, resilience and “We continued to take our RARE was entered into, piloting a by the middle of this year. innovation from our members responsibilities as an anti-money contextualised recruitment system “We provided advice and across Scotland and beyond. laundering (AML) supervisor to help improve the chances for guidance on Brexit throughout “At the Law Society, we have extremely seriously and made less-advantaged young people to the year, and produced a series of responded by looking carefully at significant progress against the get into a career in the legal sector. webinars looking at the impact of our own costs, furloughing staff objectives we set out for ourselves the UK’s departure from the EU through the UK Government Job in response to our 2018 review by John Mulholland, on Scots law and legal practice. Retention Scheme, freezing staff the Office for Professional Body President We will continue to provide recruitment and re-balancing our Anti-Money Laundering Supervision “This report is that support and guidance budgets to reduce discretionary (OPBAS). being published at throughout the transition spend. Meanwhile, our staff “And we delivered a major project a time of extreme period. continue to work with our President to integrate the Journal Online financial challenge “We welcomed a 3% rise and Council to provide members website into our own, improving the for the legal in legal aid fees in April 2019, with a wide package of support and way in which we are able to share sector, with court but it’s important that this is guidance. We have a clear statutory news, updates and information with work suspended and the recognised as a short term rise and objective to ensure Scotland has our members.” sudden halt to the property market. a step towards a more appropriate a strong, varied and effective legal Firms have been furloughing rate of remuneration for solicitors. profession. This will remain our top Craig Cathcart, staff and deferring traineeships, Regulatory seeking to control costs, with Committee much uncertainty around what the “Our profession is currently facing a convener long term impact of this pandemic “In the is going to be. The outbreak historic challenge, with the coronavirus interesting times has inevitably and dramatically pandemic requiring flexibility, resilience in which we changed our planning for next year. live, the committee Our priority is to do all we can and innovation from our members” has continued to give

42 / May 2020 12,244 solicitors at end of year - 54% female and 46% male 545 newly admitted solicitors - 346 female (63%) and 199 male (37%) Non-practising members/retained on the roll - 2,218

17 new claims 0 rejected in full were made 14 agreed in full against the 1 partially agreed 12,244159 consultations responded to across 17Client Protection 1 withdrawn the Scottish and UK Governments and Fund in 2018-19 1 was carried the European Commission forward to 2019-20 We commented on 25 bills passing £206,000 was paid 159 through Holyrood and Westminster

telephone queries and written7,600 queries from solicitors 7,600 3,800 dealt with by our Professional Practice team 416 conduct complaints received 2018-19 Our GDPR web pages got 24,400 unique views 416409 investigations closed 108 CPD events held and 160 modules made available online 493 active investigations at year end Our CPD team had 3,450 face-to-face engagements at hosted events 131 suspended files at year end We had 2,499 registrations for Online CPD, including 1,800 for online risk management

thought to how 21st century further and the committee having Graham Watson, outturn this year. Of course, regulation should look, supporting the opportunity to submit additional Finance given that the final position the profession and protecting the proposals ahead of new legislation. Committee will involve a snapshot of public interest through consistent, “Anti-money laundering has convener and the value of the investment accountable and proportionate continued to be a key area of focus, treasurer portfolio on 31 October, measures. and the committee ensured delivery “The past few it is quite possible that “The first half of our operating of an action plan to implement months have been a significant deficit will be year focused on the Legal Services recommendations made by Office quite exceptional reported if global stock markets Review report, which published in of Professional Body Anti-money and have had a significant and do not see a post-COVID-19 late 2018. We welcomed much of it, laundering Supervisors (OPBAS). detrimental impact on the financial rebound by the year end. including the recommendations for We formed a new standalone position and future financial “Of much greater concern is the improved regulation of entities and regulatory subcommittee to deal prospects of the Society. The pre- effect of the crisis on the Society’s broader cross-border regulation. We with this complex landscape COVID-19 budget for the Society financial position beyond 31 October especially welcomed its recognition and oversee the specialist work assumed a breakeven position for 2020. The forward picture looks that the current complaints system required. the financial year ending 31 October very challenging, especially in is not fit for purpose, being costly, “Other key areas of work have 2020, with a modest contingency view of Council’s decision to reduce complex and time consuming. included improving the current for unforeseen events. As a result 2020-21 fees due from members. Many of the proposals in the complaints process, and our work of the crisis, the Society has been The Society’s scope of work and report reflected the suggestions on price transparency within the forced to take immediate action to its associated cost base for the which have been pursued by the legal services market. We also reduce its cost base and conserve following year, will require additional committee for some time. responded to several consultations, cash. scrutiny and careful management “However, the committee as ever balancing the professional “Since receipt of most of the as a consequence of providing this believed the report failed to provide and public interest, and seeking Society’s income predates the much needed relief to members, a convincing argument or detailed to achieve public confidence in crisis, it is still the expectation in order to deliver an acceptable evidence to support the core how we regulate our vital legal that with careful cost control, financial outturn for 2020-21.” proposal of creating a new single profession. You can read the full a broadly breakeven position, independent regulator of legal report on my first year as the prior to recognising the effects View the full annual report and services. We now look forward to Regulatory Committee’s convener at of the pandemic on the Society’s accounts at www.lawscot.org.uk/ the Scottish Government consulting www.lawscot.org.uk/annualreport.” investment portfolio, will be the annualreport

May 2020 \ 43 In practice

RISK MANAGEMENT When never means NEVER Here she goes again, talking about payment instruction fraud! But Gail Cook of Lockton is still seeing Master Policy claims where fraudsters have successfully targeted firms’ client accounts, and recounts two such cases

ot again, I hear Traditionally, it has been many weeks, each with their own when the solicitor spotted emails in you say. Give it a conveyancing transactions which alarming characteristics. her email account which she herself rest. Don’t you have been the target for these The first was a firm acting for a had not sent. have anything frauds, but we are seeing this client in the sale of a property. The In the email to the cashroom the “N else to write broaden out into other areas like client lived some distance away and case reference given in the email about? executry matters and commercial all correspondence on the matter was correct and the wording of the Of course we do, but in these share sales. was carried out over email. When email was such that it could easily articles we try to bring to you Whilst we are not in danger of the firm emailed the client with have been genuine. However, it what is topical in the world of risk payment fraud claims overtaking details of the proceeds of the sale was not and the instruction was management and address areas residential conveyancing as the and a request for bank details, an actioned and money was paid into which are pertinent to Master number one source of claims email came straight back providing the fraudster’s account. The amount Policy claims. I am very sad to say against the profession any time those details. There was no was not as large in this case but the that payment instruction fraud is soon, that is no reason not to take indication that the email containing firm were equally as distressed at currently very much on our radar, these issues very seriously. the bank details was anything having fallen victim to these frauds. so I make no apologies for bringing Firms should prioritise this other than genuine. There were it into focus again. It may only be risk, even if they have never been none of the usual telltale signs How to avoid falling victim seven months since our last Journal targeted. Don’t put your head in the like an amended domain name or What actions can firms take to article on the topic, four months sand: this isn’t going away. I speak bad grammar or spelling mistakes. avoid falling for these sophisticated since our last fraud bulletin and a to firms that have fallen victim to Based on this email the firm then frauds? month since our article on fraud in these scams and they are sick to paid over the proceeds of the sale to As far as client account payment a global pandemic, but the subject their stomach when they realise the bank account detailed. It wasn’t fraud is concerned I can answer that bears repetition. in a single sentence: Another reason why I am writing NEVER ACCEPT NOR ACT yet another article on this subject ON BANK ACCOUNT DETAILS is that these are some of the most “You know why you’re being targeted PROVIDED OVER UNENCRYPTED avoidable types of claim we see – you’re the trusted recipient of all EMAIL under the Master Policy, yet we Fraudsters rely on the fact that continue to see a regular flow of sorts of confidential data and, most you will act on these hoax emails, matters arising. importantly, you hold large amounts of but if you don’t and you insist on And to make matters worse, the further verification that does not COVID-19 global crisis will bring the client money. You’re in the firing line” involve email, then you will thwart fraudsters out in force, using the their attempts to get their hands pandemic as a route to perpetrate on your client account funds. yet another ingenious fraud. This they have been duped. The recent until they’d sent an email with a You might also introduce other could, for example, take the shape examples and advice here relate receipted fee note that the client procedures which do some or all of of bogus emails on the topic of the to client account payments which contacted them to say that they had the following: virus, perhaps purporting to be were made on the basis of email not received funds. Nor had they • Always take the client’s bank from official sources, which will be instructions. You should however, received the initial email requesting details from the client in person or the fraudsters’ route in either to also continue to be aware that bank details, and of course had not by telephone at the time of initial install malware or to gain access to telephone scams are still going on, sent an email advising said bank instructions – you can then use that information on transactions. as well as the fact that your clients details. information as verification should may also be targeted by these A six-figure sum was paid away you receive email correspondence Solicitors’ firms as targets fraudsters. to fraudsters with little or no hope with bank details in the future. You know why you’re being Fraudsters rely on people to help of recovery. • Always call or meet with the targeted – you’re the trusted their scams succeed. This is social The second case was a more client to verify that the bank details recipient of all sorts of confidential engineering at a very sophisticated unusual one in that it involved they have advised over email are data and, most importantly, you level, well planned and resourced. fraudsters sending emails from in fact correct. At the moment hold large amounts of client money. within a solicitor’s email account that meeting may be a video call, You’re in the firing line and you directly to the cashroom, requesting but that would still work. This need to be aware of that every Recent experience payments to be made. It concerned verification could be for either an day and do all you can to protect At the time of writing, we have had the payment of residue from a late initial notice of bank details or a yourself, your firm and your clients. reported two separate frauds in as client’s estate and it was uncovered change in bank details during a

44 / May 2020 transaction. If telephoning the client, seek to do so quickly to allow you In conclusion of the frauds to thwart, to frustrate do so from a secure line and using a to conform with the rules around There is much I could have included fraudsters’ attempts to persuade trusted telephone number. management of client funds. The in this article on fraud – we haven’t you to pay away clients’ funds. • For internal payment firm will still be liable for the self mentioned in any detail “reverse Frauds of this nature cause instructions, make use of encrypted insured amount in respect of the frauds”, i.e. where your clients are chaos and leave a trail of financial email or “off-network” systems for claim, and of course the claim will the ones receiving fraudsters’ emails and reputational destruction in such instructions. count against their record and will (purporting to be from your firm) their wake, to say nothing of the • Ensure that all staff in the have a potential impact on future inducing them to make payments to emotional damage they wreak on firm are aware of these issues and PI premiums. the incorrect bank account. Nor have those individuals involved. trained in how to spot potential While the Master Policy will we expanded on the telephone scams I would implore all firms to take frauds. Ideally you would update respond to client account fraud, if the that still exist, where fraudsters these potential risks seriously and and refresh this training regularly. fraudsters target a firm’s own bank pretend to be calling from your bank to introduce controls in their firm. account or assets, the Master Policy persuading you to move money But if you do nothing else, please What insurance would not come into play. There are to a new account or reveal your NEVER ACCEPT NOR ACT ON BANK protection do I have? other insurances, like crime or cyber passwords and security information ACCOUNT DETAILS PROVIDED Where a firm has paid away money insurance, which would provide so that they can move it themselves. OVER UNENCRYPTED EMAIL. from the client account other more appropriate protection for that We have highlighted the client than on the explicit instruction situation. If you need advice on those account payment frauds because Gail Cook is a client executive within of their client, the Master Policy covers, you should contact Lockton that is where we see the activity Lockton’s Master Policy team. She professional indemnity cover will or your usual insurance broker for at the moment. As we have can be reached on 0131 345 5571 or respond to that claim and will further advice. mentioned, they are also the easiest by email: [email protected]

FROM THE ARCHIVES 50 years ago 25 years ago From “Professional Indemnity Insurance”, May 1970: “Over the last From “Tax Matters”, May 1995: “I cannot resist... the following statement decade the cost of professional indemnity insurance has probably from Customs and Excise Business Brief: ‘With effect from 1st April increased proportionately more than any other item of expense 1995 live ostriches and fertilised ostrich eggs will be zero-rated. incurred in connection with the practice of a solicitor... It would Current supplies of ostrich meat are zero-rated as food for human be possible for a professional man in his contract with a client to consumption or as animal feed stuffs.’... this change follows consultation disclaim liability for his actings but such a course is unlikely to be with relevant bodies, which include the splendidly named British recommended by the governing body of any profession... It may Domesticated Ostrich Association. It is (genuinely) not known whether properly be argued that [the area of professional responsibility] the date mentioned in the announcement is of significance. Perhaps it is has now become so wide that... consideration should be given to a sad reflection on our tax system that we cannot be sure whether they the introduction of some statutory limitation of liability.” are joking or not!”

May 2020 \ 45 HOMEWORKING Homeworking: lessons from a shutdown Already being paperless made the move to homeworking easy for Archie Millar, but he believes all firms can benefit from the experience

have previously written articles in this journal on the virtues of a paperless office with a cloud-based IT system. The I coronavirus shutdown has only underscored these. As a quick refresher, we have a server in the office which replicates once a day with an identical machine off-site. So, we host our own cloud. This means that if we can access the internet we can work on our cloud. We also work a paperless system, which means we can access all our files and stored data. So when we were forced to close our office it meant that we could simply go home, switch on our computers and continue as before, using Facebook, WhatsApp or Zoom where necessary or if visual contact with our clients was desirable. We redirected our landlines to our mobiles using the provider’s app. So it really was a case of carrying on as before. The whole system acted as a disaster recovery plan which was implemented in the time it took us to get home. Communication with clients and other the potential benefits of homeworking, this could All good stuff, but homeworking has made me solicitors is as simple as it is from the office, become a disciplined way to slip into partial think about the future. using my mobile phone. I could use the provider’s homeworking, perhaps linked with desk sharing As businesspeople we all have to remember app but I have not learned that trick yet. and flexible working. that we are in business to make money, not to Supervision of staff could be a problem, but I employ people and not to own large buildings can check up on any file at any time, which is a It doesn’t stop there but to provide a service as efficiently as possible part solution. In any event as there is a constant But what about the bigger picture? We all for which we can charge fees. flow of emails between us I do not see that as an know, or are part of, firms which occupy totally So, let’s look at homeworking and its benefits. insurmountable difficulty. If you are concerned unsuitable premises. We were one of those that staff would not be working, just think of until we reduced our space requirements and Get more done the amount of time which is wasted in the office streamlined our systems, which enabled us to In the interests of client confidentiality and in the form of gossip, communal tea making or move to much smaller accommodation. The security of data, the firm where I served staring out of windows. financial benefits were immediate and dramatic. my traineeship operated a ban on any You know who in your office is working and They will move from the profit and loss accounts documentation, firm or client, leaving the office. who is not. It will be the same with homeworking, to the balance sheet more quickly than you could Now that problem does not exist because, as we and so is the answer: deal with it. imagine. Among other measures, homeworking work on the cloud, there are no data on anyone’s Like other people I have spoken to, I find it could reduce your accommodation requirements. laptop and there is no paper to leave important to dress as I would for If we look at the even bigger picture, think of the office. As soon as I switch my the office and to have that dedicated the reduction of time and miles spent commuting laptop off, the connection is lost and space, preferably a room, which and the benefits that would bring to the will not be restored until I log in again. can be treated as an office. I know environment, as well as increasing the quality of I have found from the experience it sounds silly but it gets your head life for the homeworker. This is not pie in the sky: of enforced homeworking that it is in the right space, and many people already there are calls from environmentalists possible to process vastly more work working at home feel it is important. like David Attenborough for homeworking to in a day than would be possible in So it works, and when lockdown become much more widespread after lockdown the office. Working from home means Archie Millar is lifted it is my intention to allocate is lifted. is principal of working alone, so there are fewer MacRae, each appropriate member of staff a Perhaps it is time for firms to be investigating interruptions and it is much easier to Stephen & Co, time when they can elect to work the potential benefits and moving towards having prioritise and plan work. Fraserburgh from home. If you are not convinced of a proportion of staff working from home.

46 / May 2020 WORD OF GOLD As the pounds decline, the penny drops The COVID-19 crisis will spark the necessary cultural change resisted in more comfortable times, says Stephen Gold

hen the tide goes out, you see force. Life happens, as is only too apparent. who’s wearing shorts and who It’s possible to do the right things, and still be isn’t.” (Warren Buffett) ambushed by events. I’m all for supporting “W “Depend upon it, sir,” said Dr good colleagues through tough times. But on Samuel Johnson, “when a man the other hand, what is collegiate about scoping knows he is to be hanged in a poorly, under-recording time, billing late, being fortnight, it concentrates his mind wonderfully.” tardy about collection and leaking profit, while COVID-19 has focused our minds on survival as still collecting your monthly envelope? It is the not since World War 2. It is transforming our opposite of collegiate. understanding of business resilience. The root of A G Lafley, the CEO who transformed Procter resilience is cash, but for many law firms it is an & Gamble, once said there was no point in being Achilles heel. in business if you did not play to win. He wasn’t Recently, the software company BigHand advocating that the end justifies any means: surveyed 275 finance professionals in US and simply that without a winning mentality, a UK law firms of more than 100 lawyers. It found business is doomed to being either an also- that 37% of UK firms underpriced, while 32% ran, or extinct. There are different ways of scoped poorly, and did not use the right level of measuring business success, but all others pale resource. To stop profits leaking, 46% of UK firms in comparison to success at the bank. planned to train lawyers in pricing practices, Every firm is different, and leaders must make while 35% said they would take steps to improve a judgment on the right regime for them. In a time recording. “One of the few upsides profession which defends personal autonomy Training may be necessary, but is it sufficient? like the NRA defends the right to bear arms, there Don’t 100-plus lawyer firms – and for that of this ghastly virus is is often a gap between what managing partners matter most smaller firms – already know in that it has created a would like to do, and what they feel they can do. principle what they should be doing? It’s not One of the few upsides of this ghastly virus is knowledge, but a cultural deficit that explains climate in which that it has created a climate in which permanent the gap between principle and practice. For that permanent change change can be more easily accomplished. Even to change, three elements must be in place: when things loosen up, making money will be consensus that change is needed; lawyers who can be more easily tough, with activity reduced, and battered clients are confident in the value they deliver; and accomplished” demanding easier terms. Lowballing will abound. a system of measurement, appraisal, reward The threat to incomes and jobs means there will and recognition which creates accountability, never be a more opportune time to get buy-in incentivises best practice and bears down on for fresh policies, better systems, new ways of tardiness. Such is the task of leadership. with a thin smile. “We never have to.” evaluating partners and staff, to nudge (or in Later, I had a conversation with the regional some cases elbow) them into raising their game. Going Dutch managing partner of a Big Four accountancy In such an environment, there may indeed be a For a different approach to these matters, let practice, and the same subject came up. His valuable place for training. me take you to Amsterdam. I once attended an firm has a system where each team pledges to We think of ourselves as being at war just IBA conference there (remember conferences?) ingather a minimum amount of cash each quarter, now, so it seems apt to invoke one of Winston which included a session on managing cash. and if it is not collected, the local board are not Churchill’s best pieces of advice: Never waste a We were addressed by a US lawyer and CEO, paid their quarterly bonus. Nobody wants to be good crisis. whose spectacles and personality had the same the miserable wretch who has cost the board steely glint. Asked by the moderator how his a payday, and so, as with our US friend, the firm ensured that bills were rendered and cash situation arises once in the bluest of moons. Stephen Gold was the founder and senior partner collected on time, he said it was very simple: of Golds, a multi-award winning law firm which if monthly targets for cash in were not met, Turning crisis to advantage grew from a sole practice to become a UK leader partners were not paid their drawings. There was When I discuss methods like these with clients, in its sectors. He is now a trusted adviser to a notable frisson round the room. Eyes widened. their most frequent objection is that it’s too leading firms nationwide and internationally. Bums squeaked. “How,” asked the moderator, “do drastic, and not collegiate. You have to take the t: 07968 484232; w: www.stephengold.co.uk; you enforce that?” “Simple,” replied our speaker, rough with the smooth. The argument has some twitter@thewordofgold

May 2020 \ 47 In practice

APPRECIATION Peter Carmichael Millar OBE, MA, LLB, WS 19 February 1927-16 March 2020

eter Millar, Law Conference, held in Edinburgh who died on in 1977 and attended by some 2,000 16 March at delegates. It was to have been held the age of in Uganda but had been postponed 93, was one because of Idi Amin’s dictatorship P of the there. It was an outstanding success best-known in Edinburgh, as a result of which and most he was awarded the OBE in 1978. respected Scottish solicitors of his After this he was invited to other generation. He had a wide private Commonwealth Law Conferences, client practice, for 27 years he was representing Scotland at those held closely associated with the WS in Hong Kong, Jamaica, Cyprus, Society, and for eight of those years Vancouver and Melbourne. he was its head, as Deputy Keeper Despite his commitment to his of the Signet. During his career he practice and to the WS Society, also held a number of other Peter found time for several other important positions in public life, senior public appointments. From and he organised one of the largest 1973 to 1985 he was chairman of international conferences of the General Trustees of the Church lawyers ever held in Scotland. of Scotland. From 1983 to 1991 he Peter was born in Glasgow on was chairman of the Mental Welfare 19 February 1927, the older of two Commission for Scotland, an children of the Reverend Peter appointment dear to his heart since (“Pat”) Millar OBE, Minister of his daughter, Anne, suffered lifelong Balshagray Church in Glasgow, and mental disability. his wife Ailsa. In 1933 the family In 1991 he was appointed as moved to Aberdeen on his father’s a chairman of tribunals, first of appointment as Minister of the West Medical Appeals (the first Scottish Kirk of St Nicholas. He was educated him, Alison, Neil and Alastair. From 1964 to 1983 Peter served solicitor to be so appointed) and at Aberdeen Grammar School. Kirsteen and these three survive as Clerk of the WS Society. In 1983 later of Pension & Disability By the time he left school in him, along with three grandsons. he was appointed Deputy Keeper Appeals. He continued these 1944 the end of war was in sight, Peter considered studying of the Signet, an appointment tribunal commitments until 1999. but he wanted to join the Royal theology and joining the Church, but he held until 1991. He is the only Peter’s recreational interests Navy. In March 1945 he undertook he settled for the law, graduating person in the history of the Society, included golf, hillwalking and travel. officer training at HMS Raleigh LLB from the University of stretching back over 400 years, His enthusiasm for golf went back in Devonport. By that time the Edinburgh in 1952. He did however to have held both these offices. at least to his time as a student in St commissioning of officers was maintain close church connections During his 27 years of service he Andrews, and he was a long-term greatly reduced, so he volunteered for the rest of his life, and was an directed, influenced or supervised member of the Bruntsfield Links as an ordinary seaman and saw elder of St Giles Cathedral for many the many important events and Golfing Society, of which he was service on the eastern seaboard years. He served his apprenticeship changes which marked that period honorary secretary for six years of the United States and in the Far with Davidson & Syme and qualified of the Society’s history. He was from 1983, and of Muirfield (the East and Australia. as a solicitor in 1954, being admitted also one of the leading figures Honourable Company of Edinburgh On being demobbed, Peter as a WS that same year. Leaving in the founding of the Edinburgh Golfers). In autobiographical notes enrolled at the University of St Davidson & Syme he was offered, Solicitors’ Property Centre in 1971, he has left behind, he listed his Andrews, graduating with an MA in and took, a partnership in W & jointly underwritten by the WS and career and leisure interests and 1949. There he met his future wife, T P Manuel, which later became SSC Societies. added: “Apart from the above I have Kirsteen Carnegie. They married through amalgamation Aitken One of the most challenging and never been asked to do anything”. in September 1953, a happy union Kinnear & Co and then Aitken Nairn. fulfilling experiences of Peter’s He was a master of understatement. which lasted for more than 66 He remained there throughout his career was when he was asked years until his death. They had four career, until his retirement in 1992 by the Law Society of Scotland to Tom Drysdale, children: Anne, who predeceased as senior partner. organise the Fifth Commonwealth Deputy Keeper of the Signet 1991-98

48 / May 2020 ASK ASH Send your Limiting those domestic interruptions queries How can I reduce family intrusions into my homeworking? to Ash “Ash” is a solicitor who Dear Ash, Ash replies: ensure that when you down is willing to answer I have been working from Working from home certainly tools for a break, you look to work-related queries home since the coronavirus involves balancing work spend a little time with your from solicitors and other crisis escalated. However, commitments within the children to allow them to get the legal professionals, although I am working long demands of home life. Because benefit of you being at home. which can be put to her hours on my laptop, I am you are physically present This way, you can feel less guilty via the editor: peter@ finding that my partner and during normal working hours, about work whilst still feeling connectcommunications. children assume that I am your family will naturally, at that you can have some time co.uk. Confidence will available throughout the day times, feel that you are available with family. be respected and any due to my being in the house, to attend to their needs; and they Try to schedule meal times advice published will be and they don’t really take will need some time to adjust with your family and have lunch anonymised. work boundaries seriously. to the realities of your work together with your partner and Please note that My partner will frequently commitments. kids. You are entitled to a proper letters to Ash are not start asking about domestic You have to be able to have lunch break and spending this received at the Law issues when I am working some time to focus purely on time with family should allow you Society of Scotland. and I often lose my train of work issues without interruption, to relax away from work and also The Society offers thought. My children also and the best way to do this is to to catch up on domestic issues. a support service for want me to play with them find a space in your home where Consistency with boundaries trainees through its and don’t seem to understand you can essentially close the is not always going to happen, Education, Training & that I have work to finish off door and deal with work. With and the odd kids’ demands or Qualifications team. or calls to take. I’m starting to younger children, you could try tantrums being heard in the Email legaleduc@ feel under immense pressure to explain to them that you are background during work calls is lawscot.org.uk or phone in terms of work deadlines, going to a virtual office and that becoming quite the norm; we are 0131 226 7411 but I don’t want to let my you will be back to see them all in the same boat, so try not (select option 3). family down either. after a couple of hours. Try to to worry!

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