SignetJuly 2012 - Issue 03 magazine The magazine of The Society of Writers to Her Majesty’s Signet

Summer Ball 2012

Scotland’s Banks Ian Fraser and Jeremy Peat p. 6

Plus LORD MACKAY The Monarch of and the Writers CLASHFERN p. 22 p. 14 EXCLUSIVE INTERVIEW The Scottish Sale August 2012 Edinburgh

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International Auctioneers and Valuers - bonhams.com/edinburgh SignetJuly 2012 - Issue 03 magazine The magazine of Contents The Society of Writers to Her Majesty’s Signet Summer Ball 2012 / 4 Deputy Keeper’s Letter / 5 Caroline Docherty EDITOR Robert Pirrie SCOTLAND’S BANKS PRODUCTION AND MARKETING Loss of trust / 6 Claudia Marshall Ian Fraser CONTRIBUTORS Karen Baston, Stewart Inside the rise and fall of RBS / 11 Brymer, Caroline Docherty, Ian Fraser, Randy Gordon, David Halliday, James Jeremy Peat Mure QC, Jeremy Peat, Robert Pirrie LORD MACKAY OF CLASHFERN ACKNOWLEDGEMENTS From the Highlands to High Office / Lord Mackay of Clashfern KT, 14 Lord Cullen of Whitekirk KT Interview by Robert Pirrie DESIGN The WS Society In camera / 20 PRINTING Minuteman Press PUBLISHER The WS Society Her Majesty’s Signet / 22 Karen Baston LETTER FROM AMERICA / 24 Randy Gordon THE SOCIETY OF WRITERS CELEBRATING WILLIAM ROUGHEAD WS TO HER MAJESTY’S SIGNET Roughead’s friends / 26 Oscar Slater: what happened... / Deputy Keeper of the Signet 28 CAROLINE DOCHERTY WS Karen Baston Office Bearers LEGAL PRACTICE SIR ANDREW CUBIE CBE WS Transfer of property / 30 JAMES RUST WS Professor Stewart Brymer WS RODERICK BRUCE WS BRUCE BEVERIDGE WS Modern construction of contracts / 32 AMANDA LAURIE WS James Mure QC Chief Executive Signet Accreditation / 34 ROBERT PIRRIE WS David Halliday Director, Professional Services SOCIETY ANNA BENNETT WS McVey Napier WS / 36 Director, Business Services Karen Baston CLAUDIA MARSHALL

Keeper of the Signet THE RIGHT HON LORD MACKAY OF CLASHFERN KT

Signet Magazine / 3 WS SUMMER BALL

Members and guests danced the night away at the WS Society’s Summer Ball in May. After dinner, Callanish played both contemporary and Scottish country dance music which kept the dance floor full all night long. The atmosphere was relaxed, with a touch of glamour.

4 / Signet Magazine Deputy Keeper’s Letter

expect that most members The next opportunity will be when will have been as fascinated the Pommery Champagne Café Bar as I was by the excellent is once again in the Lower Library BBC documentary RBS: for the duration of the Edinburgh Inside the Bank That Ran Festival Fringe. And, of course, by Out of Money, though I had next year we hope that there will a particular interest, as be a more permanent opportunity my late father, a chartered for members to bring guests to the banker of the old school Library for coffee or a light lunch, as and latterly a senior the space once again becomes a centre manager, had spent all his working life for meeting and working in a way that with RBS. I doubt anyone could have suits the practices of the 21st century, Ibeen more proud of that institution, while respecting the past. but before his death in 2008 he had begun to express doubts about the I spoke in the January edition of leadership of “Fred the Shred” who the magazine about the role of DKS was “not a banker”, and the board not being all dinners and champagne, that ought to have been reining in and here we are again, with evidence his more obvious excesses. I know on these pages that might lead you to that you will enjoy the articles in this think otherwise. Pride has obviously edition by Ian Fraser, lead consultant developed as the theme of this letter, on, and Jeremy Peat, contributor to, and proud as I am of my membership that documentary. That I write this of the Society and role in it, that is as as the LIBOR rate-fixing scandal nothing compared to my pride at the unfolds just adds piquancy to the story. proficiency in Scottish country dancing being shown by my husband, Neil, in On the topic of pride, I have the photograph on the opposite page. mentioned before the important role it Little did we both think, as we were plays in membership of the WS Society. put through our paces in the run up Our research in the development to the “Quali Dance” as Prom Night of the Vision and Strategy document was called back then, that our primary showed that there are two sides to the school pas de bas training would come membership equation: the heart and in so handy! the head. On the heart side sits pride. We continue to build into our strategy the development of opportunities Caroline Docherty to exhibit that; for our members to Deputy Keeper of the Signet showcase the Society, what it stands for, and our magnificent building. The Deputy Keeper of the Signet is the most The “revamped” Summer Ball, held in senior membership representative of the WS May, is a good example of that, as the Society. photographs show. Many members contacted me after the event to say how much their guests had enjoyed the evening, and the splendour of the setting.

Signet Magazine / 5 SCOTLAND’S BANKS

Loss of trust

Scottish banking was once renowned for prudential management. Today the association is rather different. Respected financial journalist IAN FRASER gives his view of events behind the collapse of RBS and HBOS and calls for a Leveson-style enquiry.

6 / Signet Magazine RBS former Chief Executive Fred Goodwin became the face of the UK’s banking meltdown.

Scottish banking was once renowned for prudential management. Today the association is rather different. Respected financial journalist IAN FRASER gives his view of events behind the collapse of RBS and HBOS and calls for a Leveson-style enquiry.

Signet Magazine / 7 few weeks after with banks’ balance sheets, pursuing By 2005, investors were becoming a the bailouts of quixotic yardsticks like return on little concerned that Goodwin might Royal Bank equity – and by extension enhancing have his priorities wrong. After one of Scotland their own earning-power and status – investment analyst accused him of and HBOS they clean forgot the fundamentals of being “a megalomaniac” who was more in October banking. Alarm bells ought to have interested in scale than shareholder 2008, Prime sounded long before the October 2008 value, the RBS board commissioned Minister implosions. For example when RBS PR firm Brunswick to check whether Gordon splashed out $10.5 billion on Charter this view was widely shared. It turned Brown told One in May 2004, RBS did not seem out it was. But the board shied away BBC News that: “What has happened to mind that the Ohio-based bank’s from sacking Goodwin, opting instead is we have had a banking crisis which balance sheet was stuffed with a form of to hobble him by banning further Astarted in America… This is an subprime lending. By December 2007, acquisitions. international crisis that has not been Charter One had $9.3bn of “home generated in Britain”. Brown was not equity lines of credit” (HELOCs) and o escape from the only politician to be in denial $11bn of mortgages secured by second M&A “cold turkey”, about the causes of the UK banking liens on its books. Goodwin dashed crisis. headlong into areas But unlike HSBC with its $15bn he did not really In an interview the previous month, Household Finance Corporation deal, understand, sowing as HBOS was being acquired by Lloyds Goodwin refused to acknowledge he the seeds of the TSB, Scotland’s First Minister Alex had been sold a pup. Even once the bank’s collapse two Salmond accused “a bunch of short- credit crisis was in full swing he failed years later. He gave RBS’s investment selling spivs and speculators in the to admit or accept that any of Charter Tbanking arm, led by Johnny Cameron financial markets” for causing the One’s loans were impaired. and Brian Crowe, its head. The unit Edinburgh-based bank’s narrowly went hell for leather into the US averted collapse. With the benefit of “So where is RBS on all this?” asked structured finance market, as well as hindsight, such claims were clearly John Hempton of Bronte Capital the leveraged-buyout and commercial ludicrous. For RBS and HBOS were Management in May 2008. “Answer: property markets in the UK and not laid low by short-sellers or events delusional. They have taken no charges Europe, but at the worst possible point beyond their control in the United and all the goodwill from the Charter of the cycle. States (although these may have One acquisition, which remains on played a part in tipping them over RBS’s balance sheet unimpaired”. RBS Greenwich Capital, the the edge); they failed because of the bank’s Connecticut-based structured stupidity, hubris and greed of their Hubris was already starting to get finance arm, became one of the management. the better of Goodwin. He splashed leading players in collateralized debt ONE ANALYST ACCUSED GOODWIN OF BEING A “MEGLOMANIAC”.

In a report published last out £18m on a private jet, £6m on obligations (CDOs) (which basically December, even the FSA blamed the the conversion of a St Andrew Square meant it “structured” or “engineered” Edinburgh-based bank’s collapse town house, £350m on a campus- teetering debt built on a foundation on factors including the “significant style headquarters at Gogarburn and layer of subprime loans issued to US weaknesses in RBS’s capital position”, $400m on a US headquarters with the consumers with little propensity to pay “over-reliance on risky short-term world’s largest trading floor. Black them back), first as a manufacturer/ wholesale funding” and “concerns and Mercedes 600 SELs with peaked hatted distributor and then as a hoarder. uncertainties about RBS’s underlying chauffeurs were on call 24/7 wherever RBS leapt up the rankings of CDO asset quality”. But the regulator added he went. He indulged himself with a underwriters becoming a top five that “the multiple poor decisions that permanent suite in the Savoy hotel, player, alongside players like such RBS made suggest that there are likely recruited his boyhood heroes Sir Jackie cautious institutions as Bear Stearns to have been underlying deficiencies Stewart and Jack Nicklaus as £1m-a- and Lehman Brothers, with CDO in RBS management, governance and year “ambassadors” for the bank, had volumes increasing 134% in 2006 culture which made it prone to make fresh fruit flown in daily from Paris alone. poor decisions”. to the executive suites at Gogarburn and Bishopsgate and deluxe pies hand By mid 2007 other Wall Street players This is edging towards the truth. delivered by favourite pie-makers recognised the CDO market was what Put another way one could say that Sir Yorkes of Dundee at all times of day derivatives expert Janet Tavakoli has James Crosby (HBOS chief executive and night. He also became so obsessed described as a “fraud to cover up a from September 2001 to June 2006), with interior décor at the bank’s global fraud” and sought to “derisk” their his successor Andy Hornby, and Fred network of offices that he is said to portfolios, which basically meant Goodwin (RBS CEO from March 2000 have ripped out acres of thick pile selling as much as they could, as fast as to October 2008) were so obsessed carpet if it was the wrong shade. they could, to easily duped European

8 / Signet Magazine banks. But RBS preferred to cling knowledge of the further nasties that was rubber-stamped by non-executive on to the fiction that its portfolio of lurked on ABN’s balance sheet (after directors, voted on by seemingly “super-senior tranches” of CDOs was all, many of them had parked them somnambulant institutional investors largely unimpaired, at the same time there). For RBS, by now the largest and and pored over by legal and other as clinging onto these tranches in the most toxic bank in the world with a $3 advisers such as the “magic circle” firms vain belief that the credit crisis was trillion balance sheet, was being kept Allen & Overy and Linklaters. But this a mere “blip” and valuations would alive thanks to some £100m of secret, corporate governance superstructure, recover. emergency loans from the US Federal despite costing hundreds of millions Reserve and Bank of England. of pounds in fees, failed utterly. he FSA – known to some as the Then, in what must be one of the The “tripartite” regulatory “Fundamentally most shareholder unfriendly diktats framework introduced by Gordon Supine Authority” in history, FSA chief executive Hector Brown in 1997 was, if anything, - puts these sorts Sants forced Goodwin to tap his worse, sitting idly by while the likes of things down to shareholders for more cash through a of Goodwin leveraged their banks as “poor decisions” rights issue. Goodwin and the rest of many as 70 times. (It has also been and a “bias towards the RBS board, together with advisers suggested that the FSA was complicit optimism”. The Americans see it Merrill Lynch, Goldman Sachs and in helping the banks bury some Trather differently. In a lawsuit filed UBS, persuaded investors to chuck of their more virulent frauds and last September, the Federal Housing a further £12bn into the RBS money misdeeds – just ask me or look at my Finance Agency (FHFA), an arm of the pit. The money obtained was almost website (ianfraser.org) if you would US government, took out a criminal entirely lost. Hundreds and possibly like to know more). action for “hoodwinking” Fannie thousands of former NatWest and RBS Mae and Freddie Mac by selling staff who took out loans to buy shares And where were the auditors in all them $30.4 billion of misdescribed in the rights issues have been cleaned this? Should they not at least have residential mortgage-backed securities out financially as a result and, having recognised that RBS’s and HBOS’ s (RMBS). Sometimes the “owner sacked them, they may face eviction by capital positions were dangerously occupancy data was materially false”, RBS from their homes. weak, leverage was out of control and claimed the FHFA, adding that RBS “assets” less solid than made out? You also “furnished appraisals that they There are many people I know who would like to think so. But the audit understood were inaccurate and describe this rights issue as the “crime process too seems to have failed utterly. that they knew bore no reasonable of the century”. But according to the relationships to the actual value of the FSA, Goodwin and his co-directors In keeping with Deloitte’s underlying properties”. The FHFA also were not responsible for any corporate “embedded” approach at RBS, KPMG

There are many people I know who describe this rights issue as the “CRIME OF THE CENTURY”.

accuses RBS of “systematic disregard governance failures. They just made a failed to raise any red flags about of their own underwriting guidelines”. few bad decisions. HBOS, despite fanciful valuations The case, which RBS is determined to given to most of its corporate “assets” fight, is scheduled for 2014. Given this clearly regulatory failure, and a series of alleged frauds and the RBOS Shareholders Action Group misdeeds in its corporate lending Seemingly motivated by a – comprising more than 8,000 retail arm (some of which are currently the playground desire to avoid RBS being and institutional investors – is filling subject of one of the UK’s largest ever leapfrogged by Barclays, Goodwin the vacuum and on March 12 pushed fraud inquiries, led by Thames Valley then doubled up on RBS’s exposure the green light on a £3bn legal action Police and the Serious Organised to the most toxic parts of the financial against Goodwin, his co-directors Sir Crime Agency). Yet despite the markets by paying €71bn for the Dutch Tom McKillop, Johnny Cameron and seeming inability of Deloitte and bank ABN AMRO. The deal completed Guy Whittaker and the bank itself. KPMG to detect anything might be four months after the credit crisis had The action group is being represented going ever so slightly awry at RBS erupted but Goodwin failed to adjust by Bird & Bird and a team of five QCs. and HBOS, the Financial Reporting the price. Proceedings are expected to start in Council, where ex-RBS director Sir London’s High Court this year. Steve Robson remains a director This deal basically destroyed despite his part in RBS’s downfall, has RBS’s already dangerously over- Of course it is wrong to lay all the no current intention of probing either stretched balance sheet, and meant blame for what happened at HBOS Deloitte’s or KPMG’s bank audits. RBS’s wholesale funders shied away, and RBS on the banks’ respective refusing to roll over loans, given their chief executives. Every major decision Five years into the banking crisis,

Signet Magazine / 9 the banking world remains very much in denial and a long way from recovery. There is a patchwork of yet- to-be-implemented reforms, including “ring-fencing” from the Independent Commission on Banking, higher capital and liquidity requirements from the Basel Committee and “bail- ins” from the European Union. But these proposed reforms have ignored the elephant in banking’s room – that the banking industry has appears to be an ethics-free zone. Both before and after the crisis there have been instances of treating customers, depositors and shareholders with contempt, and basically of banks appearing to regard themselves as “above the law”.

This is why I and others believe that it is not too late for a wide-ranging, independent, Leveson-style public inquiry into the banks. The inquiry would scrutinize all the parties involved in this sorry episode, including bankers, institutional investors, brokers, credit rating agencies, accountants, other professional advisers, the FSA, the Treasury and the Bank of England. Without such an inquiry, it seems unlikely that banks and financial institutions will be able to regain our trust.

Ian Fraser is a journalist, writer and broadcaster. His blog is at ianfraser.org He is the son of Sir Charles Fraser WS.

10 / Signet Magazine SCOTLAND’S BANKS

ne day late in 1992, whilst working away as Senior Economic Adviser at the Scottish Office, I received an offer from the then Dr George Mathewson to take over as Group OChief Economist at RBS, on a two year secondment.

I had been in the same job at New St Andrew’s House for some eight years, needed a change but wanted to stay in Edinburgh. Given the increasingly positive reputation of RBS under Dr George this seemed too good an opportunity to turn down - especially on a secondment, i.e., retaining firm hold of my civil service comfort blanket. (The basis of the secondment, as set out by Dr George, was along the lines of “see if you can make any sense of what economists do here; if you can maybe you stay, if not the secondment will have done you good”). I moved over to St Andrew Square in early 1993, and stayed in that post until retirement in March 2005.

The majority of my tenure at RBS was through a series of remarkably good years for the bank and hence those working for the company, but towards the end there were a few difficult years. As the whole of Scotland now knows, and Ian Fraser’s article forcefully reminds us all, those difficult years were the precursor to a series of dramatically awful, catastrophic years for RBS, and indeed for HBOS.

But it is important to remember the good days. RBS grew rapidly, domestically and internationally and Inside the across a broad sweep of financial sector activities. However, right through to the early years of this century it remained a customer-focused bank; one where the customers really rise and fall mattered. That was the case in the UK but also in the US, where Citizens Bank grew steadily via a series of (initially) small acquisitions, but remained essentially the community bank that it had originally been when of RBS a tiny organisation in Rhode Island. Chief Executive Larry Fish boasted of Citizens’ inherent caution and local Former Group Chief Economist at RBS focus, as well as its financial success. Expansion in Europe got underway, Jeremy Peat is proud to have been as a corporate bank, and joint ventures associated with the bank but sad and were a feature of the growth and diversification of RBS – including angry about its decline and fall. Tesco Personal Finance and the

Signet Magazine / 11 Virgin One Account. There was also rapidly became a major bank for mantra. As we all know, it ended in the continuing great success of the business, with major ambitions - and tears. Those tears were shed by those innovative Direct Line, first in motor risks - to match. who cared – and still care for - the insurance and then more widely. institution and of course by the many There was also a move into China, thousands who lost jobs, capital and ver this period the broadly successful, and then the income as the share price tumbled and management of crunch decision to go ahead with dividends ceased. the bank was tight the purchase of ABN AMRO – the and collegiate in dramatically wrong move at the an Fraser refers to the rights approach, with the dramatically wrong time. Even at issue. To many people at that now Sir George that time it was nigh on impossible time purchasing extra shares working closely to find anyone outwith the bank who at a price of £2 per share with and listening saw anything but massive danger in for a remarkable institution to experienced bankers and those who this move for ABN. But we are told to which they remained Oreally understood the risks inevitably the board approved unanimously so attached seemed close involved as the organisation grew. and despite the apparent lack of due to a no-brainer. Surely the The great majority of those within the diligence. This approval and the events management had everything under bank’s executive were, I would venture that followed demonstrated a notable Icontrol and just needed this step to suggest, proud to be a part of this failure of corporate governance. to restore order? Wiser heads took successful Scottish company, which was a cautious approach and avoided acquiring a growing domestic market Throughout the period post throwing good money after bad. But share and extended international NatWest purchase the search for for those who remembered the great presence, while remaining true to its growth intensified – being fifth largest years of the bank rationality was not essential ethos. This still applied for in the world was not enough. In always the first response. a period following the acquisition of addition to seeking acquisitions this

RBS was a great Scottish success story in so many ways. I remain proud of having been associated with RBS during a great decade; and so very sad and very angry about the decline and fall.

NatWest – in which Fred Goodwin required rapid organic growth in the RBS was a great Scottish success played a mighty role having recently treasury world and across corporate story in so many ways. I remain proud arrived from National Bank of and investment banking, as financial of having been associated with RBS Australia as CEO-designate - although crisis and global recession loomed. Of during a great decade; and so very with the benefit of hindsight the course the message must have been to sad and very angry about the decline stresses were beginning to show. continue to be risk aware, risk averse and fall. I hope that we have learned even. Of course there must have been lessons about corporate governance Then it all went so terribly wrong. advice internally to beware of the US generally as well as about oversight This change broadly coincided with housing market and its widespread of the banking sector, but have my the time when Fred Goodwin actually implications. But when targets in continuing doubts. took over as CEO. At around the corporate and investment banking same time Citizens moved from small were based upon rapid growth which Jeremy Peat is former Group Chief acquisitions to large ones; moved out could not be achieved without taking Economist at Royal Bank of Scotland. He is of its core territory of New England more risks, and when financial a Director of the David Hume Institute and into New York State and then the incentives were related to those high Chair of the Board of the Royal Zoological Mid-West; and rapidly increased its stretch growth targets, then the risk Society of Edinburgh. activities in commercial and corporate issue inevitably loomed less large banking. The “community” bank in practice in the decision-making

12 / Signet Magazine SCOTLAND’S BANKS John Russell of Roseburn WS

Clerk to the WS Society and Secretary of Royal Bank of Scotland

John Russell of Roseburn became a Writer to the Signet on 3 April 1749. He was one of many Writers to the Signet who served as officers of Royal Bank of Scotland. His portrait by Allan Ramsay hangs in the Minto Room at the Signet Library.

Signet Magazine / 13 The Writers to the Signet is a VERY SPECIAL BODY of professional people in Scotland.

Lord Mackay of ClasHfern KT

Commissioners’ Room Signet Library 23 May 2012

14 / Signet Magazine LORD MACKAY OF CLASHFERN

Part 1 From the Highlands to High Office

To mark his fifth year as Keeper of the Signet, Lord Mackay talked to Robert Pirrie in the Commissioners’ Room at the Signet Library. In the first of a two part feature, Lord Mackay speaks about his Highland roots and how a visit to Marks & Spencer brought news of a government appointment in the offing.

s a young man With typical modesty and lack of and the Writers to the Signet is a very James Mackay ceremony, Lord Mackay kindly agreed special body of professional people in s t u d i e d to talk about his life and career and Scotland and I think they do a great mathematics there follows a record of the first half deal to maintain the high standards b e f o r e of this conversation. of the legal profession in Scotland. I d e c i d i n g am very much in support of that and to pursue Robert Pirrie – James, it is five years therefore very willing to come and a career in since you became Keeper of the Signet be involved in anything that I can be law. From the by virtue of being appointed to one of that promotes the profession and in outset he set Scotland’s most ancient offices of state, particular, of course, the Writers to his sights on success at the Scottish Lord Clerk Register. You have been a the Signet. Bar. He practised as an Advocate from very engaged Keeper for us and, as A1955, becoming a QC in 1965 and people always say to me, you’re very I have many memories of this was Dean of the Faculty of Advocates approachable and a great figurehead building and indeed of this very before being appointed Lord Advocate for the Society. What does the position room. Where we are sitting now [the in 1979. Judicial office in Scotland in mean to you? Commissioners’ Room in the Signet 1984 was followed within a year by Library] is where I often appeared his appointment as a Lord of Appeal Lord Mackay – Well, it’s a terrific in arbitration. Some I remember in Ordinary of the House of Lords, privilege to be an Officer of State in extremely well and it’s a great chapter then the UK’s highest court of appeal. Scotland with no executive role at of very interesting work. An already distinguished career was all except in relation to admission of to become unique when, in 1987, Writers to the Signet. On the other RP - Do you remember any colourful Prime Minister Margaret Thatcher hand, it is an important position in occasions here? invited Lord Mackay to become Lord the profession in Scotland and I’ve Chancellor of Great Britain and he was been very devoted for many years to Lord Mackay – There’s one to become the longest continuously the profession in Scotland and all its arbitration that sticks in my mind serving Lord Chancellor in the 20th interests and when I was invited to take that we had here where Millers, who century. Many other honours have this appointment I was very delighted were instructing me a lot, had put up followed, including his appointment and honoured to do so. And it gives buildings in Clydebank that leaked, as a Knight of the Thistle in 1999. In me great pleasure to come and meet and, of course, there were difficulties 2007 he was appointed Lord Clerk the young people who want to join the about that as you can imagine. They Register and ex officio Keeper of the profession. I’m glad to see that there had balconies that leaked and the Signet. are still people who want to do that, designers were being invited to

Signet Magazine / 15 contribute their views to this. When I and that became quite an important looked at the way in which the balcony case. I think it’s in 1970 appeal cases linings were put on it seemed to me or something like that. [Whitworth inevitable that they would leak because Street Estates (Manchester) Limited v. it was folded up at the corner where James Miller & Partners Limited [1970] three faces were meeting. In that little AC 572.] point in the corner there was bound to be vulnerability. RP – Of course, you didn’t start your studies in law, which a lot of people will Ultimately we won that arbitration, not realise. and the other arbitration that really sticks very much in mind again was for Lord Mackay - No, I began my Millers but it was in the Royal Faculty studies at school and in university in of Procurators’ building in Glasgow. mathematics and I took a degree and I remember looking out at the façade graduated at Edinburgh and then I of the Stock Exchange, I think they taught for two years as a lecturer at were changing the inside and keeping St Andrew’s. At that time you weren’t the façade or something. That was a allowed to move straight on and so I was case about a company from London invited to take an appointment at St who had required Millers to build or Andrew’s which I did for two years and alter an aircraft factory in Clydebank. then I went to Trinity in Cambridge The other side were claiming against and I took a degree in maths there. us and we had a counter claim, if I When there I met Michael Atiyah [Sir remember rightly. They produced Michael Atiyah whose undergraduate a gentleman who had looked at the and postgraduate works took place at claim and he had valued the claim and Trinity College from 1949 -1955] who he was produced for the opposition is one of the leading mathematicians so I said to him, what was your value of his generation in the world, the of the claim? Oh, you can’t ask that, winner of the prize for mathematics I can’t answer that. Why not? Why that’s equivalent to the Nobel Prize in not? I mean it’s pretty relevant to the other disciplines [the Abel Prize often deal that we’re dealing with, if you’ve described as “the mathematician’s got a view of it, I imagine the arbiter Nobel Prize”, awarded to Sir Michael would like to hear it. And, of course, Atiyah in 2004 for the Atiyah-Singer the arbiter did want to hear it, and he theorum]. And he was a good friend asked the chap to answer the question of mine, but when I saw his capabilities and the chap gave the figure, and, well, I realised that my role wasn’t in I mean they hadn’t much of a case after academic mathematics for the rest of that! That was just an example of what my life. can happen in arbitration. My mother had passed away and my And that case went to the House of father was here [in Edinburgh] on his Lords because there was a question own and I had done all the mathematics as to what was the proper law of the that Edinburgh University had to offer contract and also what was the proper in the ordinary course of events, and so law of the arbitration. And I had to I came back and thought I’d like to do make good the proposition that the law and never regretted that decision. proper law of the arbitration could be different from the proper law of RP - You mentioned your father the contract. They argued that the and you were born and educated in proper law of the contract was Scots Edinburgh. Had your father come because it was the system of law closest down from the Highlands? to the performance of the contract. There was a split amongst the Law Lord Mackay - Yes, in as far as I Lords about that. Lord Reid and Lord was educated it was in Edinburgh [at Wilberforce were in favour of Scotland George Heriot’s School]. My father as the proper law. The other two Law was born and brought up in Clashfern Lords were against it and Lord Guest in Sutherland, between Scourie and said that he was of the opinion with Laxford, that’s in the North West of the majority of their Lordships that Sutherland and he came down to it should be England. So the proper Edinburgh as a young man to seek law of the contract was decided to be work. And he worked here in different English law by a majority but all five capacities, including ultimately on however held that the proper law of the the railway at Balerno. And he didn’t arbitration was Scottish and therefore enjoy good health. He had a spell in the remedies that you could have would hospital down in Comely Bank, the be Scottish remedies and there was no Royal Victoria I think you’d call it. He appeal to the Court in those days from had a spell there, he didn’t have good a Scottish arbitration. So we succeeded health. But he was a very fine person

16 / Signet Magazine and very interested in church and from. So there’ll be more than one there. We went at school holidays, that theology. A great reader of second like most places, they’re not unique by sort of thing. And, of course, before, hand books, and a reader in second their name. right before I was in school I was up hand bookshops and purchaser of there, and it was great, it was valuable their wares, mostly in biography and It’s really quite interesting that to me to have company of my own age. church people and so on and also in connection with Clashfern. And Most of them were older than me. And theological books. of course my letters patent when I so I was very connected with Caithness was made a Life Peer in 1979 refer and Sutherland all my life really. And my mother was a widow to Eddrachillis which is the Parish in Thurso and she came down to in which Clashfern is located in the [Lord and Lady Mackay were later Edinburgh - I think it was 1917 or County of Sutherland. And the County to move house to Cromarty at the end something like that. She’d lost her of Sutherland is the smallest county in of his time as Lord Chancellor. This first husband very suddenly in Thurso. the United Kingdom, I think, so far as period will be covered in the second He was in business there and he just population is concerned, not for size, part of the interview to be published went out at lunchtime and came home but population. in Signet Magazine later this year.] dead. So it was quite a shock to her. She was quite a young wife at that time And it’s most interesting to me that RP - Going back to your legal career. but by then she had met my father and my successor as Lord Chancellor was You were at the Scottish Bar obviously, they got married in 1921 and after Lord Irvine of Lairg [Derry Irvine, starting in the 1950s? some considerable time I came along, who was born in Inverness, appointed the only child, in 1927. [Lord Mackay as successor to Lord Mackay as Lord Lord Mackay – I became an was born on 2 July 1927.] When I went Chancellor in 1997 following Tony Advocate in 1955. to the House of Lords my surname Blair’s Labour election victory]. And being Mackay, you couldn’t call his letters patent also were connected RP – So you practised at the Bar yourself the Lord Mackay because the with the County of Sutherland. And in the 50s, 60s and 70s until your chief of the Scottish clan retains that. his middle name is Mackay as well. appointment as Lord Advocate

I think people would have thought of me as quite shy... But when it got to the law, debating the law, that was rather different and I just had a terrific time.

There is a Lord Mackay - Hugh Mackay He’s Alexander Andrew Mackay [in 1979]. What’s your memory of [14th Lord Reay, Baron Mackay] is the Irvine. So he’s got Mackay in the practising at the Bar at that time? chief of the Clan Mackay, and one of middle of his name as well. It’s quite his titles is Lord Mackay. So I had to extraordinary but there we are. It’s a Lord Mackay - Well, there was look for some title connected with bit of a coincidence. nothing like so many people as there some place or other and I thought are at the Bar now. Nothing like it. of Clashfern. It was in honour of RP - So you obviously have this But, of course, there wasn’t so much my father really. He’d passed away, connection with the Highlands. How litigation, at least generally speaking. of course, some considerable time do you think that has informed your When I was called in July 1955, I was before that. But there were some of outlook? How would you say...? called by myself. There was nobody his relatives still alive at that time and else. I had devilled [trained as an they were absolutely delighted. And Lord Mackay – Well, you know, Advocate] for Bertie Grieve who it’s nice, I think it’s a nice name. It’s Robert, although I was born and became Lord Grieve and he was in easy to spell, and also fairly easy to brought up in Edinburgh, we went the same group as Lord Emslie who pronounce. I think it’s quite a good a lot to the North, to the Highlands. became the Lord President. I was choice, and I’m often asked, is it the Actually my mother’s brother had a also friendly with Alistair Johnston only Clashfern in Scotland? I met small farm in Caithness and he had [later Lord Dunpark]. And so I was somebody in a restaurant one day and seven children and his wife passed introduced to a pretty busy group of he said to me, which Clashfern is it you away leaving one of them extremely Advocates and I found myself getting are? And I said all of them! And he young. And my mother and father involved in their work quite a bit. said there’s a Clashfern somewhere being more or less free from any And then when they took Silk as they near Fort William where he came responsibility by that time went up a lot gradually did their practices tended to

Signet Magazine / 17 come to me in quite a large number. remember was a case where somebody my breakfast. He was very friendly to had fallen out about an oil drill or me after it, but he was frightening and So I became really pretty busy as a something of the kind. And it came he had to have everything absolutely junior. And pretty hard work. I always up for debate and Robert Howat right, he was ready to pick on anything. tried to give everything I could do, in McDonald [later Lord McDonald] was He did it in a way that made you feel the sense of doing your work properly on the other side. He was a good bit slightly stupid. And it wasn’t difficult and trying to be ready and so on. And senior to me at the Bar. He was on the to do that for me anyway. I got to I had the advantage of having been other side. And I don’t know, it’s hard to know him very well latterly. But when at Shepherd & Wedderburn as a law recall these things fully, but once I got I was a junior at first he was rather a student. In these days you could go going… I mean I was pretty shy I think formidable character. There were to the Bar just like that if you wanted it would be fair to say. I think people other formidable characters later but to. But I didn’t feel that that was wise. would have thought of me as quite shy. that was, that was early on. I had to do the three year course on Maybe not, but I thought I was pretty law in Edinburgh University. So I shy. I never took part in debating clubs And I had some very interesting managed to get a position as a sort and things, societies. I was a member cases as a senior too. I was in the of law student, not an apprentice, at of the Speculative Society but I didn’t Argyll divorce case as a junior to Shepherd & Wedderburn. I didn’t take very much part in it, to the sort George Emslie. [In 1963 the 11th become an apprentice because I of minimum, because it wasn’t in my Duke of Argyll divorced Margaret wanted to burn my boats really. I blood, a debater of that sort of sense. Campbell, Duchess of Argyll, is a case didn’t want to have the option of being But when it got to the law, debating that made headlines and scandalised a solicitor still. You know, I thought the law, that was rather different and I high society.] I also acted for the Duke that would be unwise. I just had to just had a terrific time. And Lord Hill in the case that the Duchess brought make a success of it, you know. And I Watson entered the spirit of it and he against him which he gave up at the think that’s good that way. One of the questioned me and, looking back, he last minute. So I got some insight things I think about education today is gave me a really superb time. It gave me into family law as well, and did a lot of that children coming up to that sort of a sort of confidence in legal argument other divorces as well. But that was the

Bett and I were in Marks & Spencer for some reason or another. And he said to me, “JAMES, i HEAR YOU’RE GOING TO BE LOR D a DVOCAT E”. i sAID, “WHAT?”

stage have so many choices that it’s very and in carving it out that I wouldn’t lead, that was the main one. That got difficult to make a choice and stick to have thought of before. So it was a us to the House of Lords as well, on a it. And once you’ve chosen, if you start great start from a very generous man, question about confidentiality. looking at the others, it damages your Lord Hill Watson. Incidentally, I was drive in what you’re doing. So anyway once at a meeting where Jock Cameron RP - And your career at the Bar that was my theory. So I was with [Lord Cameron] was there. He was ultimately culminated in your being Shepherd & Wedderburn. Ivor Guild introducing Lord Hill Watson to make appointed Lord Advocate. was the head of the Court Department a speech and he told us that Lord Hill when I went there. He’s still flourishing Watson is a good judge. A very good Lord Mackay - That’s right. I had in the New Club in Edinburgh and a judge. He said, you don’t need to tell also been the Sheriff Principal of Writer to the Signet, of course. The him the same thing seven times over Renfrew and Argyll from 1972 and head of Shepherd & Wedderburn before he understands it. He said, no, then that finished when they decided then was Sir Ernest Wedderburn who with him five times is quite enough. to make the Sheriff Principal full time. was Deputy Keeper of the Signet. So I Well that was Lord Hill Watson. I owe Then I was approached to become was early introduced to the Writers to him a terrific debt, really. a part-time member of the Scottish the Signet. And that helped me too. Law Commission. And I was also the They didn’t have a terrific amount of RP – What was the Bench like? Were Vice Dean of the Faculty of Advocates litigation work at that time. They had they sometimes quite ferocious? by that time. And then I was elected some but not a terrific amount. But Dean of the Faculty at the end of 1976. they did give me some cases and I cut Lord Mackay - Oh yes. I don’t think And in fact I was Dean until I became my teeth on some of these. I’ll mention the name of one but Bett the Lord Advocate in 1979. [Lady Mackay] used to say if I was going One of the earliest debates I to appear before him I couldn’t take RP – And did your appointment as

18 / Signet Magazine Lord Advocate come as a surprise to decisions, that sort of thing. So I you? continued to be an Advocate really until I became a judge in 1984. [Lord Lord Mackay - It certainly was. An Mackay’s appointment as a judge of extraordinary surprise. I’d never been the Court of Session in Scotland was in politics of any kind whatsoever. I’d followed in 1985 by his appointment never seen myself anything to do with as a Lord of Appeal in Ordinary (“Law politics at all. And it was really a very Lord”) of the House of Lords which odd thing. But one of my colleagues was the highest appellate court in the was down in Marks & Spencer on a UK prior to its replacement with the Friday. Bett [Lady Mackay] and I were Supreme Court of the UK.] in Marks & Spencer for some reason or other. And he said to me, James, RP – And life changed again... I hear that you’re going to be Lord Advocate, I said, what? He said, yes. I Lord Mackay - Yes it did. Opening said, I would rather they had told me Immediately, to be a judge in Scotland by this time. I was at home on Monday was interesting. At first, because I had again morning and I got a message from been Lord Advocate, I couldn’t do Downing Street to say that the Prime criminal work, but I think it was six Minister would like to speak to me. So months or something then I became at needless to say I made myself available a criminal judge as well. I did quite and she [Margaret Thatcher] spoke to a few criminal cases too. Then I was me and she asked me if I would become appointed to the House of Lords The Signet Lord Advocate. And I said, well, Nicky and there’s a good story about that. Fairburn is QC and he is a Member of I treasure it, because it’s about real Library Parliament. Yes, she said, but, if you people. I was sitting in Glasgow, in would become the Lord Advocate, he the High Court, a criminal trial, would become the Solicitor General. and I was coming home from court for So I said, well in that case I can’t refuse in the afternoon walking up Argyll that appointment. Perhaps I should Street. That morning’s papers had my have thought for a minute because the appointment and, as I recall, there was drop in income was not insignificant! a big photograph in the Daily Record. The Edinburgh As the Dean of the Faculty I was much Coming home up Argyll Street these in demand. two chaps were sitting on a seat and Festival Fringe as I passed one of them said, “Lord RP - And how would you say things Mackay”. So I came over to him and changed for you once you became he said, “We see you got a wee bit of 3 - 27 August Lord Advocate and part of the political promotion - we were all very pleased”. I world? didn’t know for whom he was speaking! 11 am - late Anyway, I thanked him kindly then Lord Mackay - I think it was very went on. There was something about good for me. I was introduced to the that that really stirred my heart a bit. world of politics and to the matters of the press and so on and introduced When I was invited to become a Lord to it fairly gently because I was fairly of Appeal in Ordinary, I had been junior in the political hierarchy, the asked by the Lord Advocate, Kenny Lord Advocate, although a senior Cameron, whether I would be willing minister in Scotland, second to the to accept the appointment. Having Secretary of State for Scotland, is not considered it, I said, yes, I would. I much in England. Except that the heard nothing until I got a letter Attorney General, who was Sir Michael from the Appointments Secretary Havers at that time [subsequently Lord at the Cabinet Office to say that Mrs Havers and Lord Mackay’s predecessor Thatcher had sent me a letter a month as Lord Chancellor of Great Britain], before and she was wondering why I took an interest in me and he told hadn’t answered! I had never received me it was his suggestion to the Prime the letter! Whatever happened to it Minister that I should become Lord nobody knows. But anyway... Advocate because he’d met me when he’d come up to Scotland some time before the election. I worked a lot with Sir Michael and he used to In the second part of this feature, From nominate me for doing English cases Court Room to Cabinet Room, to appear in in the House of Lords and that was the next edition of Signet Magazine, Lord an extraordinary experience and I Mackay talks about his time in government, maintained my position as an Advocate the importance to him of Lady Mackay and quite a bit even after being the Lord his family, and an awkward day keeping Advocate. And I also appeared from Mrs Thatcher waiting. time to time for the Crown in Scotland as well, including some planning

Signet Magazine / 19 In camera The WS Summer Ball 18 May 2012

20 / Signet Magazine Signet Magazine / 21 Her Majesty’s Signet

On 5th July 2012 Her Majesty The Queen installed her grandson, His Royal Highness Prince William, Earl of Strathearn, a Knight of the Thistle at St Giles Cathedral. As is customary on such occasions, Her Majesty and the royal party processed to and from the Signet Library. The Queen has visited the Signet Library regularly during her reign. To mark the Diamond Jubilee, KAREN BASTON explains the history of the WS Society’s relationship with the monarchy.

The use of a signet ring to have honoured successive kings and demonstrate royal authority goes back queens. Whether fighting in battles to the 1300s in Scotland. Robert I or delivering loyal addresses, Writers and his son David II both used a ring to the Signet have supported their to seal official documents and one of monarch. In celebration of our them had it engraved with the arms of current Queen’s Diamond Jubilee this the King of Scotland. The Signet was year we look at some examples of the no longer a ring by the early fifteenth close royal relationship from the late century and it was kept by a clerk. This seventeenth century to the present. Keeper of the Signet had great political importance since the use of the Signet riters to the Signet joined was connected with the will of the advocates and “certain king. The Keeper of the Signet became clerks of session” on he WS a royal secretary and member of state 13th June 1679 to raise Society’s history is deeply intertwined in 1444. A group of writers emerged Wa regiment “for his majesty’s service” with that of the monarchy. The Signet thereafter to assist the king and his against those “who have risen up in and its functions come to us from council and by the time the College of rebellioun [sic] in the West against the medieval Kings of Scotland. The Justice came into being in 1532 these his majestie”. Sir William Sharp of SocietyT has demonstrated its loyalty writers were already organised into a Stoneyhill, keeper of his majesty’s in a variety of ways since its official guild. The Society of Writers to His signet, and Hugh Wallace, WS were foundation in the sixteenth century. Majesty’s Signet became official in chosen as lieutenants. The Battle of These expressions have taken forms 1594 when James VI’s secretary, Sir Bothwell Brig ended the alarm but the beyond the important function Richard Cockburn of Clerkington, Society, which had paid a third of the of keeping the Signet. Writers to granted a commission to the Keeper cost of raising the regiment, was keen the Signet have raised regiments, of the Signet and eighteen Writers. to know where the colours and liveries participated in ceremonies, and were to be stored so that they could “be greeted monarchs during their visits The Society’s minutes record some made forthcoming when use sall [sic] to Edinburgh. of the various ways its members be of them upon any future occasion”.

22 / Signet Magazine The same year saw a visit to Scotland The Society joined the rest of the to offer their service and support for from James, duke of York (later James College of Justice to wait on the the military in the next centuries, VII) as the king’s high commissioner victorious Duke of Cumberland in reflecting the Society’s enduring when members of the Society donned 1746. The Lords of Session were loyalty to monarch and country. their ceremonial gowns in honour of “resolved to wait on his royal highness the occasion. in their formalitys, attended by their hen George IV visited clerks, the advocates and writers to the Scotland in 1822, the WS Although the Society’s minutes do signet” and the Society agreed. But the Society planned how best not discuss the momentous events of Society had a problem: what were the to greet him. A committee 1688-1689 and the resulting change “formalitys” of the WS Society? The Wwas appointed “for the purpose of of monarch from Stuart to Orange, Keeper looked into the matter. The considering the most suitable means the Society warned masters to look legal profession had been required to of testifying the sentiments of dutiful after their excitable apprentices after use gowns since an act of parliament of and affectionate loyalty towards rioting occurred when James VII 1609 and the Society had worn gowns his majesty’s sacred person”. The established a Roman Catholic chapel at of some sort to greet James, Duke of committee decided that “a dutiful Holyrood Palace in 1688. The minutes York as the king’s representative in and loyal address be presented to his are then quiet because the Signet was 1679. By the mid-eighteenth century, majesty by the Society” by the Keeper shut from July, when the king and the Society’s legal dress code was in of the Signet, the Deputy Keeper, and the Scottish Parliament entered into abeyance: no one even remembered fifteen members of the Society. The a dispute about which had the right what colour the gowns had been in hall and recently completed library to appoint the Lords of Session, to 1679. It was clear that gowns were were to be put “in a proper condition October, when the new king William required to meet the Duke as the for his majesty’s reception, in case of Orange arrived in Britain. On king’s representative and the Keeper it shall be his majesty’s pleasure to 18th April 1696 the Society declared left a gown in the Society’s hall as a inspect them”. To make a royal visit its loyalty to William’s “most sacred pattern. Furthermore the new gowns more likely, the Society also took care person and government” and to the were to be black since it was deemed “to intimate to the lord provost their protestant religion while expressing more suitable than red and they were willingness to grant the use of their its distaste for “the late king James and to be made of “Scots shalloon”, a type hall for the accommodation of his the pretended prince of Wales and all of woollen material. The creation of majesty and the distinguished persons their agents”. the new gowns demonstrated loyalty who may be invited to partake of the since, in addition to honouring the civic feast”. After the visit, the minutes he Jacobite uprisings saw Duke of Cumberland during his report that “the Society’s offer of the Society members on both visit, it promoted Scottish industry hall having been accepted, it was used sides of the conflicts. The and showed a willingness to put the as the general drawing-room at the Society itself remained loyal events of the rebellion in the past. The entertainment given to his majesty Tto the Hanoverian kings each time. Society went further, too. Later in the on Saturday 24th August”. The Upper Members were advised in 1715 to “take year the members passed a motion to Library, then still owned by the care what persons they take into their promote the manufacture of woollen Advocates, greatly impressed the king chambers as prentices or servants, and cloth by agreeing that all members who called it “the most beautiful room that they should entertain none but “should appear dressed in the same I have ever seen”. those who should be well affected to the against their next general meeting in government, and make no disturbance June”. The selection of materials was he accession of Queen in the place”. Nevertheless, a non- more than an expression of fashion. Victoria prompted a display practising member of the Society, The clothing part of the Society’s of loyalty in 1837. Members Charles Chalmers of Portlethin, died “formalitys” remained woollen until of the Society met in the at Sheriffmuir while fighting for the 1901 when they were replaced by silk. Touter house and organised themselves Pretender. The Society also added a baton for its in order of seniority so that they officer in 1746. could process “in their gowns” to the The Society’s minutes are again Royal Exchange to hear the official quiet about the events surrounding the The Society continued to offer proclamation. They then processed to Forty-five. The accounts were given and support for military ventures. The Castle Hill for a second proclamation. the Signet office was put in order. That Lord Provost of Edinburgh asked Fifty years later, the Society celebrated the accounts are nearly the only thing for the Society’s support in 1778 “for Victoria’s Golden Jubilee by installing mentioned is interesting: the Society’s raising a regiment for his majesty’s a stained glass window in the Upper treasurer, fiscal, and substitute keeper service in America”. The meeting of Library. The design includes both the had joined the Jacobite forces to act as 19th January responded unanimously royal arms and the arms of the Society. fund raiser and treasurer for Bonnie that “it is the duty of all his majesty’s Prince Charlie’s army. Sir John Hay good subjects to testify, on this very The special relationship between of Restalrig WS raised £5,500 from important occasion, their loyalty and the Society and the head of state Glasgow merchants for the cause but, attachment to his majesty’s person continues to the present day. The despite his experience as a treasurer and government, and their zeal for the story of that relationship – following for the Society, proved not to be up to honour and dignity of the nation”. The the journey of the Signet from private the challenge of financially managing Society pledged five hundred guineas seal of the Stewart dynasty to symbol an army. Hay fled to France after to raise a regiment to fight for the of the state in modern Scotland – is in Culloden. Another member, Mr king and raised the funds quickly via a microcosm Scotland’s story. And so Colquhoun Grant WS played a notable voluntary tax on all letters passing the will it continue. role on the Jacobite side at the Battle Signet. of Prestonpans and was honoured by Charles at his first levee at Holyrood. Members of the Society continued

Signet Magazine / 23 Letter from America Following the collapse of another international firm, Dewey & LeBoeuf, RANDY GORDON asks if the era of law firms as stable institutions is over.

n recent weeks, I have been in the Snowian sense of responding Professor Sir Neil MacCormick’s sense thinking about the concept alike to a problem, situation, or of the word), it qualifies as a “practice” of “virtue in the profession” subject “without thinking about it”. (in MacIntyre’s sense of that word). in light of the collapse of Two “cultural” obstacles stand in the In any event, a few of the contrasting the venerable international way of virtue in the legal profession, examples that MacIntyre proffers firm now known as Dewey & only one of which, the second, can I should sharpen the focus: tic-tac-toe LeBoeuf. The narrative of take up here: first, separate cultures is not a practice, chess is; throwing a that firm - one containing have grown up around the legal ball - even with skill - is not a practice, threads of a distinguished tradition academy and legal practice; second, football is; bricklaying is not a practice, Iand the corruption of commerce - legal practice itself has migrated architecture is. By these lights, I think is in many ways representative of a from one culture to another. Each of we can safely categorise lawyer-work as vocation that can no longer call itself these divergences is antithetical to the a practice. a profession, yet cannot quite call itself notion of virtue. But before moving a business either. So let me take a few to specifics, we need to pause and MacIntyre goes on to identify two paragraphs to sketch out a central consider what virtues should obtain in types of goods associated with a There are many reasons, but, in sum, there was a lot of money to be made by those who could grab it.

aspect of the problem that all law firms the context of law. practice. The first are “externally and face and how they might meet the contingently attached” to practices “by challenge. As Alasdair MacIntyre has noted, the accidents of social circumstance”. in heroic societies (think of the These goods are external because Over 50 years ago, C.P. Snow Iliad or Beowulf) virtues and roles there are multiple paths to their decried the rise of what he called were inseparable, and the concept attainment - for example one can the “two cultures”. He meant this of virtue coincided with the notion achieve fortune through not only a metaphor to capture an inability to of excellence (e.g., a great runner myriad of practices but through an communicate between communities displays excellence of the feet). To accident of birth, a roll of the dice, of scientists, on the one hand, and bring this into the present, MacIntyre or a great train robbery. This is to be literary intellectuals, on the other. develops the concept of a “practice” contrasted with the goods internal to Snow’s analysis seems right to me, and in his After Virtue. His point is, I a particular practice: namely, “those it may be useful to frame a discussion think, that once an activity becomes goods (1) that we can specify only in of virtue with the notion of “culture” “institutionalised” (in the late terms of, or with examples drawn

24 / Signet Magazine from, the practice and (2) that can strong loyalties because they see their only be recognised by the experience future riddled with contingencies, of participating in the practice in management seems to care only about question”. What does this mean for profitability, and even highly successful lawyers? partners can see their careers hit the rocks by a client defection. But above If a lawyer from 1950 was parachuted all, as one commentator tartly puts into the present, I suspect the most it, “Large firms view good lawyers as startling change he would notice in expendable”. the legal landscape (and it would almost inevitably be a “he”) would wish I could end on a be the overall number of lawyers and wholly positive note but the size (both in terms of number of I think that the classical lawyers and geographic scope) of law lawyer virtues will continue firms. Why the explosion? There are to exceed our grasp so many reasons, but, in sum, there was a long as the problems I lot of money to be made by those who have identified with multi- could grab it. national corporate law practices persist. And they And one way to grab it was to create will persist. So what are we very large, highly leveraged firms that to do? Ironically, I think one answer could siphon off “premium” work is for firms to throw off the shackles at premium rates. This comes at an Iof professionalism and behave more associated cost in terms of the older like business and be allowed to - for “partnership” model in which the instance - enter non-competition partners actually knew one another, agreements with their partners or socialised together and made decisions burden business generated at the firm as a group. Now, large firms are with a continuing royalty. Or, as Bill impersonal - they are bureaucracies, Henderson has suggested, law firms really - and decisions (to quote Abe outside the primary capital markets Krash, a retired Arnold & Porter may find ways to build solid (perhaps partner) “that were once influenced not solid gold) practices around like- in significant part by tradition, loyalty, minded lawyers. I have my doubts, but and regard for past contributions the conversation is worth having, if you to the firm, are now determined by believe, as I do, in the value of stable bottom line, objective factors”. The institutions. lock-step system of compensation has been replaced by an “eat what you kill’ system, i.e., a system geared to business generation”.

o why do firms now emphasise profitability above Randy D.Gordon is an Associate WS all when it so clearly and a partner with Gardere in Dallas, serves to enhance Texas. His practice is focused on complex only the external litigation, principally in anti-trust. He is goods of the the author of Rehumanizing Law: A Theory practice (i.e., money of Law and Democracy which followed a and its collateral period of study at the School of Law at the prestige)? The University of Edinburgh working with the short answer is “lawyer mobility”. late Professor Sir Neil MacCormick. The Time was, there were virtually no book was highly praised with Harvard Law Slateral moves at the partnership level, Review finding it “an insightful analysis of a situation facilitated by stable client narrative both within and without the law” relationships. But as client loyalty peppered with “famous cases, poems, novels waned, a market developed for lawyers and plays” and “amusing, enriching and with portable business. In effect, then, entertaining”. the internal goods of the practice are held hostage to the external.

What this means is that Aristotelian “friendship” (i.e., the virtue that holds institutions together) is no longer possible in law firms. Indeed, it has been replaced by a pervasive sense of anxiety because competitors are always-already poaching key clients, younger lawyers do not develop

Signet Magazine / 25 CELEBRATING WILLIAM ROUGHEAD WS WILLIAM ROUGHEAD’S friends

Following our celebration of the life of William Roughead WS in the last issue of Signet Magazine, the Signet Library has welcomed visitors to use the Roughead Collection. Roughead had many distinguished admirers, including authors and historians. By KAREN BASTON.

he WS Society with his materials and insights and attention when he was a boy - which is celebrating he often lent books and provided Roughead greatly admired. The two Roughead this year feedback for his fellow criminologists. authors were firm friends and Pearson since it marks the As evidence from his library of crime visited Roughead during his visits sixtieth anniversary books shows, Roughead’s network to Scotland. Roughead’s copy of of his death in 1952. of correspondents included Edward Pearson’s edition of The Autobiography The Roughead Pearson, Horace Bleackley, H. B. of a Criminal, Henry Tufts contains the Collection, now Irving, and Sir Arthur Conan Doyle. inscription: “‘For: William Roughead, held in the Commissioners’ Room, from his friend, admirer, and assistant Twas gifted to the WS Society by Edward Pearson toiler in the same vineyard. Edmund Roughead’s family in the same year. Pearson. March, 1930”. The collection comprises Roughead’s Edward Pearson (1880-1937) was books on criminology. A project is a Librarian of Congress and, like Horace Bleakley underway to add the collection to the Roughead, a true crime pioneer. Signet Library’s online catalogue. One Pearson wrote to Roughead in 1923 - The historian and criminologist of the most enjoyable aspects of this the letter is in Studies in Black or Red Horace Bleackley (1868-1931) did work is finding the treasures tucked (Roughead Collection, R340.9 P31) - to research on Roughead’s behalf. inside Roughead’s books. Roughead thank him for book recommendations Roughead’s copy of his Some kept an assortment of correspondence and to announce his “plan to tread Distinguished Victims of the Scaffold and photographs in his books. The somewhat in your foot-steps - that (Roughead Collection, R343.9 B61) is inscriptions, letters, and postcards is, one on American murder trials. bound with a letter containing notes are addressed to Roughead from the Since a celebrated double murder in from the British Library. Another letter authors of the books and they often Massachusetts when I was a school-boy, in the same book is from Bleackley’s give him credit for inspiring their twenty-five years ago, the subject has son who introduces himself and hopes authors. always fascinated me, and your books to meet his father’s friend on his next have tempted me to try the same field”. visit to London. Roughead acquired Roughead was not alone in his Pearson’s best known work, Studies in some of Bleackley’s antiquarian pursuit of crime and exploration of Murder, was published in 1924 and books after his death including three criminology. His work inspired other featured an essay on the axe murderer pamphlets dated 1752 about the trial writers to explore the dark side of Lizzie Borden - the celebrated double and execution of Elizabeth Jeffryes and human nature. Roughead was generous murder case that had caught his John Swann for murder (Roughead

26 / Signet Magazine Collection, R343.1 J388(1-3)). Collection, R 343.9 H66) who inscribed the work: “To William Roughead one H.B. Irving of the first drivers of the Black Maria from Henry Hodge, Sept. 1935” when Another of Roughead’s it was published. The work included correspondents, H. B. Irving (1870- Roughead’s study of the Mary Blandy 1919) was the son of the famous murder trial of 1752. Victorian actor, Henry Irving. The younger Irving also acted before Since only some of Roughead’s books turning to criminology and writing. have been catalogued so far, it is hoped Roughead’s copy of his Studies of French that more of his friends will come to Criminals of the Nineteenth Century light. Roughead’s influence on the (Roughead Collection, R343.9 Ir8) development of the true crime genre is contains not only a letter from Irving profound. The letters and inscriptions to Roughead dated 31 July 1912 but in his books reveal an international also a photographic postcard featuring network of true crime pioneers who “Mr. H. B. Irving as Dr. Jekyll” which followed Roughead’s example and who shows that he retained his taste for the relied on his friendship and support. theatrical. Roughead gave books as gifts as well as receiving them. His copy of Irving’s Last Studies in Criminology (Roughead Collection, R343.9 Ir8) has a letter from Irving thanking him for the gift of a book.

Arthur Conan Doyle

The best known of Roughead’s friends today is Sir Arthur Conan Doyle (1859-1930). The two worked together to put the famous Oscar Slater miscarriage of justice right. Conan Doyle introduced Roughead to the journalist William Park when he was investigating the Slater case. Roughead’s copy of Park’s The Truth about Oscar Slater (with the prisoner’s own story) (Roughead Collection, R343.1 Sl15) contains letters from both Conan Doyle and Park and the inscription “To W Roughead from A Conan Doyle with best regards July 31st 27”.

Roughead did not only keep messages from the authors of his books: he also kept correspondence with their subjects. His copy of John Buchan’s biography of Andrew Jameson, Lord Ardwall (Roughead Collection, R340.92 B85) contains a letter dated 19th July 1909 from Jameson to Roughead which thanks him for his gift of his book on the Deacon Brodie trial and his loan of his Introduction to the Porteous Trial.

oughead was acknowledged as a leader in criminological studies by the Sir Arthur Conan Doyle editor of The Black Maria, or, The Criminals’ O m n i b u s R(Roughead

Signet Magazine / 27 CELEBRATING WILLIAM ROUGHEAD WS

Oscar Slater: what happened...

In the last edition of Signet Magazine we told the story of William Roughead WS and the Oscar Slater trial, one of the most notorious Scottish criminal cases of the 20th century. What happened after Oscar Slater was acquitted at his second trial in 1928 is less well known but just as intriguing. By Karen Baston.

n July 1928 Oscar Slater Roughead and a group of fellow on the payment. became a free man. Having campaigners, who included Sir Arthur spent nearly two decades in Conan Doyle, the Glasgow journalist Slater meanwhile seemed diffident prison for a crime he had William Park, and the Lord Advocate about repaying the money spent on not committed - the brutal Craigie Aitchison, had worked to his behalf. Conan Doyle, who hoped murder of the Glasgow bring Slater’s cause to public attention that the government would offer Slater pensioner and jewellery and then to court. But the appeal case more so that he could be reimbursed, collector Miss Marion generated legal costs and, despite wrote to The Times describing the lack Gilchrist in 1908 - Slater had won a donations from supporters (some of of any forthcoming payment as “very Ifresh trial. The questionable evidence whom fully expected to be repaid in unfair” in a letter to the editor of 17th that had been used to convict him the event of a successful appeal), Slater September 1927. He went on to say in 1909 was challenged by the noted was left with debts to pay. Conan Doyle that he was “quite ready to meet my “Fortunately there are not many Oscar Slaters in the world”.

criminologist William Roughead WS thought that Slater should ask for own promises and guarantees – and who had not only attended Slater’s £10,000 (about £1.5 million today) in the lawyers engaged have been most original trial but had published his compensation from the government generous in their treatment – but it concerns about the evidence of the for the time he had wrongly spent in seems a shocking travesty of justice case in his books for the Notable prison. Slater, presumably eager to put that, having worked so long to set this Scottish Trials series. Roughead a speedy end to a bleak chapter in his wrong right, I should now be asked to continued collecting materials about life, accepted £6,000 (about £902,000 pay a considerable sum in addition”. Slater in his scrapbooks after the today) from the Scottish Office in appeal including newspaper cuttings August 1928. He had not taken advice The House of Commons debated and correspondence. These are from his influential supporters and the question of Slater’s legal costs preserved in the Roughead Collection they saw the amount as too little since in November 1928. Inspired by this, which was given to the Signet Library it did not include his legal costs. They Slater approached the House of by the Roughead family in 1952. were also horrified to learn that Slater Commons directly to request funds: would be required to pay income tax “I should have thought that the

28 / Signet Magazine Government in common fairness pleased by Slater’s behaviour and he Slater, meanwhile, was found ought not to expect me to bear the was not “prepared to submit to such enjoying the good life in Brighton. He costs of this case”, he wrote from Ayr treatment, and I shall be reluctantly reiterated his accusation that Conan on 5th December. He went on, “I driven to assert my rights in a court of Doyle had used him to make a profit might add that as a consequence of my law unless this man has the common financially and morally: “He raised a conviction I lost personal property and decency to pay for his own debts of his subscription for me and people said incurred expenses - prior to the appeal own free will and without compulsion”. “How good he is”. But I did not want - amounting to about £1,000”. Slater a subscription. I had got £2,000 from argued that his payment only covered Slater claimed in the Evening the newspapers, and I offered to pay the cost of his compensation and Dispatch of 13th September 1929 that my own expenses. They would not pointedly reminded the officials of his he had offered Conan Doyle money hear of it then, when there was fame to “18 years 11 ½ months imprisonment”. for his expenses after his appeal but be won, but now, when all the fame is Furthermore, the “payment of had been turned down. He argued gone, they ask me to pay”. £6,000 was suggested and accepted that Conan Doyle had in effect already merely as a consequence of my been paid since “he made money out Conan Doyle privately wrote to wrongful conviction and subsequent of me. He wrote eight articles about Roughead in an undated note to thank imprisonment”. me for the Scottish newspapers, and him for his support during these was paid £400”. Slater said he had trying times: “Many thanks, my dear Roughead. Such things are more than money”. But there was a plan afoot that could resolve the conflict. In the same note Conan Doyle continued: “Slater has a libel action which he will win against a Scotch paper. £500 will be paid to settle it. I have a lawyer who proposes to intercept this sum in court and deduct £280 which is due to me. Rather a good scheme”.

The Evening Dispatch reported that Slater’s libel award had been arrested at “the instance of Sir Arthur” and that “the action is now pending in the Court of Session” on 13th September. The action was eventually settled out of court when Slater paid Conan Doyle £250 towards his personal expenses.

Slater remained in touch with Roughead, even sending him a Oscar Slater Christmas card in 1930, and Roughead continued to collect material about him for his Slater Case scrapbooks. He The Scottish Office replied quickly been vulnerable upon his release from made the news again in 1936 when he and Slater had his answer in a letter prison and that “everything was done married Miss Lina Wilhelmina Schad of 13th December: “His Majesty’s for me. My appeal was arranged by in Glasgow where he had settled. The Government are not prepared to make men who, I thought at the time, were couple later retired to Ayr where Slater any payment in addition to the ex my friends”. died in 1948. gratia sum of £6,000 which was paid to you in August last”. This was the The Daily Mail interviewed both government’s final answer on costs. parties and published a report on 14th September 1929. An exasperated We are very grateful to Lord Cullen of onan Doyle was appalled Conan Doyle responded to Slater’s Whitekirk for kindly drawing our attention by what he saw as Slater’s statements of the day before saying to this sequel to the Oscar Slater trial. ungentlemanly unwillingness “One can only think he is mad - to repay those, especially deranged perhaps by his experiences”. Chimself, who had bankrolled his As for making a profit from Slater’s appeal. The two entered into a experiences, Conan Doyle was bitter public dispute. Conan Doyle adamant: “Making money! For 18 eventually paid the outstanding legal years I worked for him. I wrote a book bill of £330 with his own money in May about him which sold for 6d. and 1929. He wrote to the Empire News on never brought me a penny. I wrote one 2nd May stating that had Slater lost or two articles for the London Press, his appeal he would have “cheerfully but I never wrote for the Scottish taken this heavy expense upon papers and certainly received no such myself, but as he has received £6,000 renumeration as £400... Fortunately compensation it seems a monstrous there are not many Oscar Slaters in thing that these charges should be the world”. met by me”. Furthermore, he was not

Signet Magazine / 29 LEGAL PRACTICE TRANSFER of property

At one time a transfer of property in Scotland involved symbolically handing over a clump of ground or a stone or similar object on the property itself. Written documents followed and title deeds were entered in a register. Today a transfer can be made online using the latest technology. What has not changed is that solicitors are at the centre of land dealings. Professor Stewart Brymer WS urges solicitors to embrace change.

ooked at over the – in this new world of legal services. decades. The author of that article, past 400 years, the The competitive inefficiencies and Malcolm Mackay, went on to say that pace of change in lack of strategic discipline that have “… when the storm subsides, many conveyancing could characterised the legal services market of the inefficiencies that have been legitimately be will soon be behind us. It is time to masked by a rising market will be laid described as being reconstitute the modern law firm. As bare”. That prediction has come to somewhat glacial. ever, fortune will favour the brave”. pass. That pace has accelerated considerably in the past 20 Over the years, solicitors engaged s service providers, solicitors Lyears, however, with the changes to the in residential property conveyancing must be responsive to formalisation of deeds; the abolition ran profitable businesses based on change, no more so than how of the feudal system; the codification the practice of conveyancing, estate they market their expertise of the law of real burdens and the agency and related services. Many of Aand then process the work on behalf introduction of online registration of these solicitors were innovative and of clients. Many solicitors still seem title (know as Automated Registration strived to improve the quality of their to subscribe to the theory that the of Title to Land or ARTL). There has, service to clients. These changes, by client will come to them. The reality, quite literally, been an explosion of themselves, however, were not enough. however, is that consumers will shop activity in the practice of conveyancing. Other forces were at work. These around before buying legal services. This article will consider what effect included the reform of outdated We all use search engines and price these changes have had and will likely procedures and established systems, comparison sites when buying goods have in the years to come for both much of which was associated with on the internet. While it can be argued solicitors and clients. It is important, the feudal system; increased consumer that purchasing legal services on the however, to consider these changes expectations and, most recently, a basis of price alone is not necessarily against the backdrop of the significant move towards conveyancing being a the best answer for a prospective developments that there have been in digital, online activity. The pace of purchaser, we have to recognise the the legal services market generally. that change is irreversible and as was reality of the situation and seek to stated in an article in the Journal differentiate ourselves in some way Change is a dynamic, powerful, of the Law Society of Scotland in from the competition – both legal and, to some, frightening medium. Of 2008, the “perfect storm” is upon the and non-legal. Why then is it that one thing we can be sure, however, is legal profession with the problems some firms that were once prominent that change will happen. As Professor associated with the banking industry in residential conveyancing and Stephen Mayson said recently: being just one destructive wave in estate agency have been overtaken “There is much to be won – and lost a storm that has been brewing for by competitors? It is suggested that

30 / Signet Magazine the main reason is that the successful should this not be the case? If so, will provide for a digital signature for firms tend to have an increased focus who will take the initiative? What have all practising solicitors. Armed with on client care and service generally. solicitors got to gain from resisting these benefits, solicitors should be Clients have long-complained about this development? Is it that they fear well placed to better promote their over-charging; value for money; that they will somehow lose their grip services. lack of service and more. Many such on the conveyancing process? It can complaints are unfounded but we be argued that that grip is already here are inevitably some who cannot argue with the perception considerably weakened as a result of are cautious about change that exists. We have contributed to competition. More such competition is and who look for reasons that perception by demonstrating an on the way. why proposed developments alarming degree of complacency and Twill not work. Such views reached an over-reliance on time recording as Automated Registration of Title as their pinnacle around the turn of a billing tool rather than as a means a concept is sound. Sadly, the reality the millennium and will no doubt to manage our businesses more is somewhat different and, although remain for as long as there is a fear efficiently. 57,470 transactions have taken place of the unknown. Why should missives using the system, solicitor confidence based on agreed standard clauses not There can be no doubt that we will in the process is very low. That lack of be concluded electronically? What is have to be much more consumer- confidence is justified given the patchy there to fear other than change itself? focused in our service delivery. The roll-out and implementation that has reality is that consumers today want taken place largely as a result of the Although there are many competing more for less. recession. There are deeper, more pressures on conveyancers, it should fundamental issues that require to be also be noted that a recent survey So what does this mean for resolved in order to get ARTL back commissioned by First Title Insurance conveyancing? on track however. The sooner this plc and carried out by You Gov/Sixth happens, the better. With the requisite Sense in England and Wales revealed uch, but not all, of what investment, ARTL can still be the that house buyers are overwhelmingly is done in conveyancing success that it promised to be. positive about the service they receive is capable of being from their conveyancers. That should commoditised. We have The other significant change that be used as a foundation for change. Malready seen matters such as re- will soon be upon us is the enactment There is scope for optimism among mortgage work moving to specialist of the Land Registration (Scotland) quality conveyancers. The benefits firms. Case management systems Bill and, in particular, the provisions of legislative reforms and other have greatly enhanced the ability of (ss 92 - 94) which will allow missives developments provide a level playing solicitors to provide their services to be completed electronically. field for firms, be they large or small. more efficiently. These systemsThe new legislation will amend the There is considerable opportunity will only improve. Likewise, the Requirements of Writing (Scotland) for solicitors who wish to provide a

“...the inefficiencies that have been masked by a rising market will be laid bare”.

move towards more consolidation Act 1995 and, subject to necessary specialist, quality service at reasonable in standard contractual terms has safeguards being put in place with prices rather than average quality at simplified the negotiation of the regard to fraud, etc., digital signatures low prices. Conveyancing can be seen contractual stage (missives) which, in will soon become a reality. It is as a blend of private client services many cases, had become something important at this point to state that which solicitors are best placed to akin to a war of attrition with the an electronic missive is no more provide – but only if we can sharpen respective solicitors arguing over than a change of medium. It is not our consumer focus and delivery. We relatively minor points. During an erosion of the solicitor’s role in all like to receive good service. Why not such often unnecessarily protracted the conveyancing process. Public therefore strive to provide excellent periods, the most important point is key infrastructure (often referred to service using IT and other innovations often forgotten and that is that there as PKI – essentially, a secure online to differentiate ourselves from the is no deal for the sale of a property platform) is necessary for digital competition? Some firms are already until the contract has been concluded. signatures to function securely. doing this and have transformed their The collaborative regional initiatives Digital signatures will be used for market share as a result. The message within the solicitors’ profession to more than just concluding missives is simple: embrace change and move standardise contract wording (known and registering deeds under ARTL. forward with confidence. as the Combined Standard Clauses) We may also see the introduction of have helped the process and more online storage of electronic deeds. developments are required – hopefully The Law Society of Scotland is already Stewart Brymer is an acknowledged expert in the form of a single set of clauses planning to introduce an electronic on Scottish property law and Honorary Pro- for use across Scotland, albeit with Practising Certificate in October 2013. fessor in law at the University of Dundee. schedules containing clauses which That is a very positive development and are of particular importance in it is inevitable that the authentication certain areas of the country. Why process adopted by the Law Society

Signet Magazine / 31 LEGAL PRACTICE Modern construction of contracts

In this precis of his recent paper for a WS Society seminar on contract law, JAMES MURE QC of AxiomAdvocates discusses modern judical approaches.

“When I use a word,” Humpty Dumpty law reformers, businessmen, regulators interpretation of contract meaning said in rather a scornful tone, “it means and consumer groups. Early works on instructs consideration of relevant just what I choose it to mean – neither the construction of contracts, such as background circumstances (being more nor less”. Bankton’s Institute, offered what was, knowledge available to parties in that for the 1750’s, a pretty full analysis in situation, exclusive of pre-contractual “The question is,” said Alice, “whether some ten pages. MacBryde’s 1997 work negotiations), along with giving you can make words mean different covers the topic in 47 pages and, in meaning to the words used within things”. contrast, the fifth edition of Lewison their correct business context and the LJ’s The Interpretation of Contracts (2011) alignment of what the contract seeks “The question is,” said Humpty gives us 862 pages of analysis! These to achieve with business common Dumpty, “which is to be master – that’s texts are supplemented by countless sense. all”. academic articles following and commenting upon both judicial dicta Despite his Lordship’s observation ewis Carroll’s words, taken and comparative law. February 2011 that in taking such an approach, from a children’s story also saw publication of the Scottish “almost all the old intellectual baggage published almost 150 years Law Commission’s Discussion Paper of “legal” interpretation has been ago, appear readily applicable on Interpretation of Contract ahead of discarded”, he stated in a later case Lto the state of play in the current realm possible law reform. that the only controversial points of his of contract law. decision were in hearing background n understanding of the law information without it being required Those making contracts in the course on construction of contract to clear up a particular ambiguity in of their business can benefit from an needs to be alive to the arena the contract terms, and in giving effect understanding of the common pitfalls of concern, discussion and to a meaning outwith the conventional in the drafting of commercial contracts Areform, as the various interests and usage of the words used, in order that and the processes used in their judicial voices seek to move the agenda onto they were construed so as to fit with interpretation. Such an approach their chosen ground. The methodology business common sense. could better equip the agreements used by the courts in construing the they enter into against a later need meaning of what is “said” in a contract Questions abound as to what for judicial construction of meaning. has evolved over the years and will evidence a court may admit when When interpreting a contract, the continue to do so. Since the 1970s, reaching a view on the meaning of focus is traditionally on what is decisions concerning interpretation words: How far should the court actually said by the parties, whether of contracts have emphasised an consider external evidence? What in writing or by oral agreement. This objective, purposive approach and is commercial or business common way of thinking was distilled by Lord encouraged the inclusion of breadth sense? Should pre- or post-contractual President Dunedin back in 1905 as of background knowledge. The set of actions be referred to? “Commercial contracts cannot be circumstances relevant to the making arranged by what people think in their of the contract is known as the “matrix The common intention of the parties inmost minds. Commercial contracts of fact’’ and comprises anything which must be determined objectively; the are made according to what people a reasonable man would have regarded courts do not seek to read minds, say”. In this article, I hope to shine as relevant in the same situation the but rather to infer a presumed some light on the “modern” approach contracting parties found themselves intention - which may or may not be to construction of contracts by the in. the actual intention of the parties. courts in order to provide food for This traditional approach remains thought when contemplating how to During the 1990s there was key in Scots and English law in sharp go about wording agreements. a further retreat from literal distinction to the Continent. interpretation culminating in Lord This is a period of dynamic change Hoffman’s oft-cited 5 principles cited Debate continues over whether in the construction of contracts. Fixed in the case of Investors Compensation courts should have regard to pre- doctrines are passing away as we grapple Scheme Ltd v West Bromwich Building contract negotiations. The starting with issues posed by courts, academics, Society. This contextual approach to point for construction is to ask what a

32 / Signet Magazine reasonable person in the position of business to enable your argument to the surrounding circumstances. […] the parties would see as the meaning win at the end of the day. Those that Knowledge which was reasonably the words were intended to convey. are “actually involved in commercial available only to one party would This is an objective approach, which contracts” may thus be better placed not form part of the factual matrix is intended to give effect to the than the courts to discern commercial which could assist the court in the “reasonable expectations of honest good sense. construction of the contract”. people”. It is imperative to understand, however, that such a construction does here has been a series of Implication of terms into a contract not necessarily result in finding actual recent authoritative Scottish is an exercise in the construction of the intention nor understanding of the cases reflecting this dynamic instrument as a whole. In the case of parties. The court informs itself with flux. The 2009 matter of Attorney General of Belize v Belize Telecom the knowledge available to the parties TForbo-Nairn Ltd v Murrayfield Properties Lord Hoffmann warned against the at the time of the contract and asks what Limited required the construction of dangers of treating the various tests a reasonable person, thus informed, a contractual obligation to grant title for implication as if they had a life would have understood by the wording in certain terms. The court said that of their own, noting “the implication used. However, a key element of when searching for the meaning of of the term is not an addition to the this background information, prior contractual terms it was “difficult to instrument: it only spells out what communing between the parties, find a better starting place” than the the instrument means”. The point is excluded at law. The courts have terms’ natural or ordinary meaning. is discussed further by Judge Vos, tended to regard such evidence as There was no suggestion that the old concluding that “it is permissible to unhelpful due to its subjective nature. canons of construction be superseded assume that the reasonable observer or may require reassessment. The had knowledge that the parties did There is further issue over the role decision emphasised the importance not in fact have, certainly if that of the factual matrix when contracts of treating the clause as a text; a knowledge is as to established and affect multiple parties over long periods salutary reminder that text as the well-known legal principles... it seems of time. Where a contract secures primary source remains key in UK law. to me that the same will apply to the the interests of various creditors The recent modern approach, with its knowledge of the reasonable observer using different instruments issued push towards a greater appreciation when one considers the construction at different times and in different of background and willingness to of a contract as much as when one circumstances, each individual set approach textual meaning rather than considers the implication of a term”. of contractual circumstances will be merely its words, must not detract from unique. Where this is the case, the the centrality of the text. t is evident that the courts are wording of the instrument itself is seeking out a meaning which paramount. Lord Collins elucidates: In the interesting 2010 case of best fits the commercial purpose, “[the deed should be] interpreted as Luminar Lava Ignite Limited v Mama and the whole scheme of the a whole in the light of the commercial Group plc the courts required Itransaction and deed. We seem to intention which may be inferred from to construe a non-competition have welcomed onto the stage at once the face of the instrument and from agreement preventing night clubs the interpretation of the reasonable the nature of the debtors business. putting on “late night entertainment observer, the reasonable address and Detailed semantic analysis must give in direct competition on a like for the reasonable (and indeed honest) way to business commonsense”. like basis”. The issue was whether the person. Will they turn out to be one agreement prohibited the defenders and the same? The Scottish Law udges wrestle with finding from operating any discotheque or just Commission, in considering whether meaning to fit with a contract’s one offering similar types and styles to leave further development to the commercial rationale. Again, the of entertainment. Evidence of prior common law, recently decided that “a court’s primary consideration is communings, including discussions as new statutory scheme of interpretation Jto seek the objective intention of the to the type and style of entertainment to is the best way of maximising both language used. The final language and be offered, were deemed inadmissible certainty and fairness”. meaning arising will be a compromise in a finding for the defenders, allowing between two disparate commercial them to continue to host late night This survey illustrates how the interests. Current thinking was entertainment providing it attracted courts may differ in their conclusions summarised by Lord Clarke in the different clientele than the pursuer. in construing meaning to a contract. 2011 case of Rainy Sky SA v Kookmin Contract law has long been the Bank holding that “the court must have On appeal, Lord Hodge overturned subject of active and vigorous debate. regard to all the relevant surrounding that decision and prohibited any Court decisions and academic circumstances. If there are two possible form of disco in the defender’s venue. writing provide constant reminders constructions, the court is entitled He stated that the Lord Ordinary of the pitfalls surrounding contracts to prefer the construction which is had erred in excluding the prior which are not open, transparent and consistent with business common communing, noting: “Evidence competently worded. It remains the sense and to reject the other”. It is not of the factual background to the case that a deceptively simple point necessary that one construction should contract is relevant where the facts of construction can end up resolved flout common sense, indeed, the are known to both parties and those in favour of different parties at each resolution of an issue of interpretation facts can cast light on either (i) the level of the court hierarchy, and often involves checking each of the rival commercial purpose or purposes of for different reasons. The advice to be meanings against other provisions of the transaction objectively considered taken is thus to be as open, transparent the document and investigating its or (ii) the meaning of the words which and clear as possible. commercial consequences. This begs the parties used in their contract... James Mure was called to the Bar in 1995 the question how best to plead and Facts which are known only to one and took Silk in 2009. prove the nature of the manner of party are not admissible as part of

Signet Magazine / 33 LEGAL PRACTICE Signet Accreditation

David Halliday and Lynn McMahon outside Halliday Campbell’s offices in Edinburgh.

Signet Accreditation provides a means for lawyers to differentiate themselves with an independent credential of effectiveness in their area of practice. The lawyers of Halliday Campbell WS resolved to put themselves to the test. Partner DAVID HALLIDAY explains why and what it was like to achieve accredited status.

or any of the to both businesses and other solicitors For us, the very clear answer was thousands who do not have our litigation provided by the WS Society’s Signet of solicitors specialism. We are experienced Accreditation programme. Drawing practising in practitioners, offer keen rates and do on research of experiences in other Scotland today, not compete in other practice areas, jurisdictions (particularly Australia), new clients or all of which helps. However, as the the programme’s innovative new instructions aphorism has it, “No one ever got fired methodology combines open-book are likely to for buying IBM”. How could we prove examination, home assignment and have been hard- to potential clients that our service interviews with clients played by actors won. Halliday and skills at least match those of the to provide a thorough assessment of Campbell is a dedicated commercial bigger firms and what, in the awful a solicitor’s technical ability, client- Flitigation practice, offering services jargon, would be our “USP”? focused skills, practice management, 34 / Signet Magazine contextual understanding and ethical was played convincingly by an actor. Society’s brand, both in Scotland and awareness. Accreditation is offered We both found that we quickly forgot abroad, has made our accreditation across a range of practice areas: that we were in an artificial scenario, a hugely useful marketing tool in commercial property, corporate, in- closely questioning the “client” on general. All sorts of clients and house, employment and, ideally for technical matters. potential clients have remarked on us, commercial litigation. Committees our accreditation, have clearly been for each practice area decide upon the However, the occasional artificiality impressed by it and interested to learn scope and method of assessment. As notwithstanding, we both felt that more about what it all involved. I do the scheme’s promotional literature the various stages of assessment had not doubt for a minute that the time says, accreditation allows lawyers to been well thought out and replicated and effort we invested will pay very real differentiate themselves from their as nearly as could be the reality of dividends in the firm’s performance in peers and provides potential clients what faces us in everyday practice. I winning new work. with independent evidence of their key think we both learned something new skills and commitment. and gained valuable insights simply e would from participating in the process. It stress, expected to have to work was made very clear in the papers t h o u g h , hard for the prize of given to us before we started that the t h a t accreditation and was not successful candidates would be those anyone and disappointed. It is expected who listened to what the client wanted everyone that candidates will feel and engaged him in the process rather will have ready to apply three to six than treating him only as the passive t h e i r years after qualifying but recipient of advice. The sense of that own reasons to consider seeking frankly I think that any is, I am sure, something of which we Waccreditation. The stated aims of the solicitor of any experience could all be usefully reminded from programme are to provide an incentive would find the programme time to time. The incentive for critical and opportunity for solicitors and law very challenging indeed. It is not like analysis of our styles and practices, firms to become better at what they an exam. It deliberately aims to be brought by the fact that our pleadings do, to promote an improvement in Isomething for which you cannot swot were going to be reviewed by peers, service delivery to clients and to assist or cram. Candidates have to decide was also no doubt beneficial. consumers in recognising solicitors themselves whether they think they and law firms with specialist advisory have the right level of experience and The relief when the fortnight was skills. It is all hard work and cannot be expertise to put themselves forward. over was matched by a real feeling of undertaken lightly but there is not a They then have to meet an overall achievement and satisfaction when we lawyer and not a firm in the country pass rate of 70%. My colleague, Lynn were told that we had both met the that would not applaud those aims.

I do not doubt for a minute that the time and effort we invested will pay very real dividends in the firm’s performance in winning new work.

McMahon, also decided to submit standard required for accreditation. We cannot rest on our laurels, herself as a candidate. For a firm of And there indeed is our much though. Accreditation lasts for three our size, that was quite a commitment. sought-after USP: all our fee earners years and we can be required to go Over a fortnight or so, we both juggled are Signet Accredited commercial through further assessment if it is felt the usual client and business tasks with litigators. Successful candidates can that changes in the practice area make a pretty testing schedule of assessment. style themselves as Signet Accredited that appropriate. In the meantime, we The temptation to talk about the and use the programme’s logo on have to complete 30 hours relevant questions and issues raised in the stationery and the like and we are CPD each year. The commitment is, papers was almost overwhelming but actively encouraged to go out and then, ongoing and testing. But that, of was one we both managed to resist evangelise about the benefits of the course, is the whole point. until the whole process was over. scheme to clients and colleagues alike. There were a few moments of light Of course, other Scottish solicitors relief along the way. One imaginary for whom we provide litigation scenario presented to us was that of a services understand the extent of the commercial dispute and we were video achievement. More unexpectedly, the recorded meeting the “client” who value and wide recognition of the WS

Signet Magazine / 35 SOCIETY

Macvey Napier (1776 - 1847) Writer to the Signet, Professor, Editor, Librarian

he WS Society The first of these was Macvey Napier and Francis Jeffrey to write articles and received its first (1776-1847) who was admitted as a the Supplement to the sixth edition of book in 1697 when WS in 1799 and became Librarian to the Encyclopaedia appeared in twelve George Dallas the WS Society in 1805. He held this half volumes between 1815 and 1824. of Saint Martins post until 1837 when he resigned it to Napier then went on to edit the seventh presented a copy become a Clerk of Session. Napier’s edition of the work which appeared in of his recently tenure saw the library’s collection full in 1842. Napier’s contributions to published System increase from the 5,000 volumes that science and literature were recognised of Styles but it was not until 1722 that Sandy had so carefully inscribed to by Royal Societies of London and Tthe Society’s library was established about 40,000. He was also in post Edinburgh: he was elected to both. to collect texts for the benefit of its when the library moved to its new members. Curators looked after the Signet Library building and in 1815 Napier was also a teacher. He growing collection and catalogued he was awarded 500 guineas by the supported Robert Bell’s conveyancing it throughout the eighteenth Society for his “superintending and lectures by ensuring that they were held century until the first librarian, John advising during the whole progress of in an appropriate venue and he was Cameron, was appointed in 1793. the work, the fitting up of the hall and elected as the conveyancing lecturer Cameron arranged the library’s books library, and in removing and making a after Bell’s death in 1816. Napier and started a new catalogue before new arrangement of the books”. was appointed as the first professor mysteriously disappearing from the of conveyancing at the University records after collecting his salary in Despite his undoubted and of Edinburgh in 1825. He held the 1801. enduring contributions to the chair until his death and, despite his Signet Library, Napier is now better other numerous commitments, never Despite Cameron’s efforts, the known for his literary activities. He neglected his academic duties. library was in a poor state by 1804 contributed to the Edinburgh Review when George Sandy WS spent a year from 1805 and became its editor in Napier was a prolific buyer of books arranging the nearly 5,000 books 1829. Napier’s editorial policies were for the library. He was especially keen and writing “Ex Libris Bibliothecae sometimes resented by his authors, to acquire works by the mathematician Scribarum Signeto Regio” on the notably Thomas Carlyle whose long John Napier of Merchiston (1550- title page of each one. Sandy then articles he regularly cut. Napier served 1617) from whom he claimed descent. produced a new catalogue. Although as the editor of the Edinburgh Review The Napier Collection now in the he only spent fifteen months working for eighteen years and worked with Malcolm Room is the result. Many of on the library, Sandy left a legacy of many of the leading authors of the day the books are first editions from the professionalism. He was appointed as including Thomas Macaulay, Charles logarithmist’s lifetime. Napier also Principal Librarian but was unable to Dickens, William Thackeray, John collected for his own library and he continue in the role because the pay Stuart Mill, and Henry Cockburn. had thousands of books of his own. was too low and he had to resign. Sandy Some of these came to the society after remained a Curator of the library for In 1813 the publisher Archibald his death when they were purchased by life. His resignation ushered in an Constable selected Napier as the his successor as librarian, David Laing. era of long-serving Librarians to the reviser of a new edition of the Writers to the Signet who were active Encyclopaedia Britannica. Napier Napier was one of the librarians in the intellectual worlds of the 19th recruited authors like Dugald Stewart, commemorated when the Signet and 20th centuries. William Henry Playfair, Walter Scott, Library named its rooms in 1989.

36 / Signet Magazine

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