Discrimination and Land reform: Success without the psychiatric injury the journey continues human cost P.16 P.20 P.24

Journal of the Law Society of Volume 66 Number 1 – January 2021

Done deal The clock stopped ticking just in time, but there is plenty still to be worked through regarding future relations with the EU – and the impact on UK law

Click here to see Peter’s welcome message

Publishers The Atria One, 144 Morrison Street, Editor Edinburgh EH3 8EX t: 0131 226 7411 f: 0131 225 2934 Email > [email protected] e: [email protected] Read > www.lawscot.org.uk/news-and-events/blogs-opinions/ Follow > twitter.com/jlsed President: Amanda Millar Vice President: Ken Dalling Chief Executive: Lorna Jack Distant light Online resources www.lawscot.org.uk (home page) As COVID-19 cases surge, and we become practices. But the goodwill built up during www.lawscot.org.uk/members/journal/ even more locked down, I have noticed negotiations and expressed on both sides at www.lawscotjobs.co.uk news broadcasts referring to any glimmer the time of the initial announcement risked Subscriptions of related good news, such as projected being sacrificed when a draft SSI released Practising Certificate (inclusive cost) £565; vaccine rollout, as a “chink of light”. two days later – on Christmas Eve – was Non-Practising Members (UK and Overseas, In dark times, made darker by it being read as taking away with one hand part of inclusive cost) £315; Annual subscription UK £84; January, we all need something to cling what had just been given with the other. Overseas £108; Trainees Free on to, to look forward to. That, I suppose, A failure of communication somewhere, Editorial is an illustration of how we need to pay surely. Connect Publications (Scotland) Ltd particular attention to our mental health It has since been clarified that that was Editor: Peter Nicholson: 07785 460743 through this pandemic, and more a separate, and (it is claimed) cost e: [email protected] than ever in the month that is neutral revision of the criminal Advertising: Elliot Whitehead: +44 7795 977708 notorious for bringing on bouts fees rules. However the Society, e: [email protected] of depression. and members, are now on the Review editor: David J Dickson And the message of the alert to ensure that that is in Online legal news: pandemic, that we have to fact the case, and that the full e: [email protected] help each other out and pull package announced will be Other Connect Publications contacts, through this together, equally promptly delivered. Especially telephone 0141 561 0300 applies in this context. In other now, unity is strength in the talks. Head of design: James Cargill (0141 561 3030) words, don’t suffer alone. If you need [email protected] help and haven’t a friend or family member Déjà vu Editorial board you can open up to, there are resources Also just in time for Christmas was the Austin Lafferty, Lafferty Law and professional support on hand through UK Government’s Brexit deal with the EU. Andrew Todd, Springfield Properties Plc the Lawscot Wellbeing pages online. It is rather far from the “deep and special Philip Hannay, Cloch Solicitors Even if your new year doesn’t feel great relationship” desired by when David Bryson, Baillie Gifford Ayla Iridag, Clyde & Co at the moment, I wish you a happier one as talks first opened, and does not avoid the Kate Gillies, LLP it goes on – and an upward curve for us all. negative impacts now coming to light for many individuals and businesses. It does Nailing the package however contain provisions permitting UK Also needing a bigger chink of light right lawyers to continue to provide some types now is the legal aid sector. The Christmas of advice in member states. An outline can present from the Government, in the form be found on the Law Society of England Disclaimer of the 10% fee rise over two years plus & Wales website. More generally, it is The views expressed in the Journal of the Law Society of Scotland are those of invited contributors other business support, was welcomed designed to be subject to review, and we and not necessarily those of the Law Society of as a good start, even if well short of what have not heard the last of negotiations. One Scotland. The Law Society of Scotland does not endorse any goods or services advertised, nor any is needed to repair the finances of many way or another, advisers will be kept busy. claims or representations made in any advertisement, in the Journal and accepts no liability to any person for loss or damage suffered as a consequence of their responding to, or placing reliance upon any claim or representation made in, any advertisement appearing in the Journal. Readers should make appropriate enquiries and satisfy themselves be fore responding to any such advertisement, or placing reliance upon any such claim or representation. By so responding, Contributors or placing reliance, readers accept that they do so at their own risk. On no account may any part of this If you would like to contribute to Scotland’s most widely read and respected publication be reproduced without the written permission of the copyholder and publisher, legal publication please email: [email protected] application for which should be made to the publisher.

© The Law Society of Scotland, 2021 Lynda Dawn Musab Hemsi, Mike Graeme ISSN: 0458-8711 Towers Robertson Simon Mayberry Blair Thompson Average circulation: is director of is an (co-authors) is a partner in is an executive Print edition Jul 19-Apr 20: 13,788 Digital edition May-Jun 20: 13,626 Public Law employment are partner and Land & Rural coach, working Audit pending with Morton law partner senior associate Business across both Fraser LLP with Rooney respectively with Gillespie business Nimmo with LexLayton Macandrew and sport

January 2021 \ 3 THE JOURNAL OF THE LAW SOCIETY OF SCOTLAND VOL.66 NO.1 – JANUARY 2021

Perspectives Features Briefings In practice

04 Journal online 12 28 Civil court 38 Professional news January’s website exclusives Lynda Towers’ overview of the Roundup, with appeal issues Legal aid; complaints proposals; state of play post the Brexit social media guidance; RoS 05 Guest view 29 Licensing deal and related legislation consultation; policy work Melissa Rutherford and Tony What’s coming, COVID apart Bone 40 Solicitor 16 30 Planning Marking 30 years since the law 06 Letters Dawn Robertson considers New rules for s 75 reviews paved the way Doing away with “Dear Sirs”; what a discrimination case 30 Insolvency Reviews might mean for stress claims 41 Sir Gerald Gordon Making pre-packs transparent Brief profile as he retires from 07 Offbeat 19 32 Tax SCCR after 40 years Quirky news; Profile column Two employment lawyers First report from the CGT review 41 Ask Ash 08 President ask whether the rules on 32 Immigration A home based trainee feels a Wishes and aims for 2021 comparators are too rigid Curbing papers based appeals lack of connection Regulars 20 33 Discipline Tribunal 42 Pro bono Mike Blair looks at the recent Failures in a property case How doing it brings benefits to all history of land reform, and 34 Property/planning 44 Risk management 09 People suggests it is far from over yet Changing face of our inner cities Phone calls that prevent fraud 31 Consultations 39 Notifications 24 36 In-house 46 The Word of Gold 45 Archive Graeme Thompson likens Introducing new ILC members Resilience post-COVID and how 49 Classified lawyers to peak athletes in to show it 50 Recruitment coaching for best performance 47 Preparing for COP26 The Society’s survey, and 26 follow-up plans Ally Thomson describes Hey Pro bono: Legal’s arrival on the scene three case 48 The Eternal Optimist and its adapting to COVID-19 studies Facing up to the year ahead Page 42

ONLINE INSIGHT

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

After Brexit: the employment Building better: housebuilding Investors and the Part of the fabric? law outlook and climate change Government veto Office workers need to get back Laura Morrison surveys the Natasha MacDonald reviews Paul Marshall and James into their offices: an unpopular aspects of employment law most the means by which Millward explain the aims opinion or not? Musab Hemsi likely to change now that the UK housebuilding and renovation of the National Security argues that some presence there is no longer subject to European could play a greater part in and Investment Bill, which is necessary for many to make Union requirements. achieving climate change targets adds to the Government’s their full expected contribution. – but how can we incentivise powers to intervene in the necessary investment? sensitive acquisitions.

4 / January 2021 OPINION Melissa Rutherford and Tony Bone The founders of Trauma Aware Lawyers in Scotland believe Scottish lawyers, and courts, need a better understanding of adverse childhood experiences and their impact on those most likely to come into contact with the legal system

cotland is aiming to be one of the first to ensure that all individuals involved in the court system or legal trauma-aware countries in the world. system in Scotland are treated with respect and not re-traumatised. Compelling evidence is now available in the As a movement, our objective is to raise awareness of the effects public realm that trauma can have a lifelong of childhood trauma within the legal sector in Scotland. We really impact on both the physical and mental want to change the way that the whole of the justice system S health of a child, as well as their behaviour. treats people in the legal system, by raising awareness among Children who have experienced trauma can lawyers and decision-makers of how trauma impacts on people be impacted in the way they think, the way they interact with and the unforeseen consequences of their decisions in later life, people, their learning and their risk-taking behaviour. which ultimately leads to a never-ending cycle of incarceration Risk factors known to be linked to adverse childhood or an inordinate impact on the public purse. As we now know, all experiences (ACEs) include alcohol or drug misuse and addiction, too often ACEs manifest in adolescence and/or adulthood in all neglect, death of a parent, domestic abuse or violence within the sorts of ways. The old approach is family, parental divorce or separation, a parent with mental health not working, and is certainly not issues, sexual abuse and poverty. Academic studies have found helping those most affected by that as the number of trauma factors that a person has experienced childhood trauma and whose skills increases, so does their susceptibility – and their risk of having a and talents are lost forever. range of physical and mental health conditions. Their mental health We would like to thank the Law risk brings the increased likelihood of them ending up in prison, or Society of Scotland for putting a engaging in violent and/or antisocial behaviour. CPD resource online on trauma. Trauma Aware Lawyers in Scotland is a newly established We hope to work with the Society movement of lawyers who are seeking to use their own personal in the future to create further CPD and professional experience to educate all professionals involved in seminars and updates, and add the legal system, including judges, court staff and law students. to these resources so they can The founders are Melissa Rutherford (Rutherford Sheridan be accessed by the profession. Solicitors), Tony Bone (Tony Bone Legal), Iain Smith (Keegan Smith The Society also recognises that Defence Solicitors) and Nadine Martin (Harper Macleod LLP). We being trauma-aware is essential to are four practising lawyers in Scotland who have, for one reason or provide a good service to clients. A another, become aware of trauma and ACEs and who are committed quote from its website highlights to bringing compassion to the legal system. We hope that we can this: “Trauma-informed knowledge educate and influence further understanding of what having a is essential to elevate your client trauma-informed legal and court system in Scotland means, and care skills within many practice that the practice of the law can be empathetic and caring. areas, including family law, criminal We felt like we couldn’t keep this to ourselves any more. This law, child law and personal injury.” is so vital to how we treat our clients or those most in need of our Please contact us help. As a result of our epiphany and our new learning, all four of for more information at us now carry out our roles in a different way. Lawyers aren’t taught [email protected]. Find us on Facebook: Trauma about trauma at all, despite the fact that most of the people we Aware Lawyers in Scotland, Instagram: @trauma_aware_lawyers_ represent in court have suffered trauma in their lives. scotland, Twitter: @traumaAwareLaw, and Linkedin group Trauma We feel that we have a duty, or even an obligation now to share Aware Lawyers in Scotland. what we know and to raise awareness of the impact of trauma on the people we deal with. We need a person-centred approach for both victims and accused persons within the legal system. The court system is one where people are often in crisis and addiction as a result of something that has happened to them. We Melissa Rutherford is co-founder of Rutherford Sheridan, must educate ourselves so that we have the empathy and deep and a board member of charity Indigo Childcare. Tony Bone understanding of trauma in order to build relationships and trust, and practises as Tony Bone Legal, Kilmarnock.

January 2021 \ 5 VIEWPOINTS BOOK REVIEWS The Floating Dear who? Charge A D J MACPHERSON Dear Colleagues This form of address is not just PUBLISHER: EDINBURGH LEGAL Very few of us will forget 2020. As a inaccurate, however. It represents EDUCATION TRUST profession, we have shown resilience, something greater. The use of “Dear ISBN 978-1999611828; PRICE: £30 adaptability and creativity under Sirs” privileges the male norm. It tells This is the eighth volume in a series, Studies in Scots incredibly challenging circumstances. women that we do not belong. Lady Law. Its author is a lecturer in commercial law at 2021 will, we hope, see the return of Hale, writing about the lack of women the University of . It is a revised version of the normality so many of us crave. in the judiciary, noted that his 2017 PhD thesis, and is an excellent analysis of 2020 also gave us a chance to “the absence of women from the the subject matter. In the author’s words, “The work reflect. The lessons we have learned bench is even more important than contained within this book is unashamedly academic mean that we will never really go back our presence, in the message it yet also inescapably practical.” I agree totally. to “normal”. In some ways this may be sends out”. We suggest the same The book is well laid out and easy to access. The a good thing. The last year has forced can be said here. index is not as detailed as one might expect, but that us to confront practices that we do not Fortunately, unlike increasing is a very minor criticism as it does not detract from believe are working, and think about judicial diversity, there is a simple the comprehensive coverage. how we create lasting change. So, in solution. It does not take radical The detail in the book goes well beyond that the spirit of new year resolutions, we measures and is not resource which a busy practitioner is likely to require day-to- suggest that one practice we should intensive. A number of firms in day, but when a detailed analysis of the nature and all leave behind this year is the use of Scotland have already issued scope of a floating charge to heritable and moveable “Dear Sirs” in formal letters. guidance and updated their styles. The property is required, reference should be made to As you rush to catch the post, it Law Society of Ireland discontinued this book. is easy to quickly open a firm style, the use of “Dear Sirs” last year. A number of topics are ably addressed, one being paying little heed to the default Suggested alternatives include Dear the case for a floating charge attaching on the masculine salutation. We have done Sir or Madam; Dear [firm name]; Dear appointment of an administrator (chapter 3). Chapter it ourselves. In less busy moments, Solicitors; or Dear Colleagues. 6 contains a very good analysis of floating charge you might pause and amend. However, Perhaps making this simple change enforcement. Part B of the book also contains a very from our own experiences as junior will focus our minds on how to tackle useful review of Sharp v Thomson and the non- women in the profession, we know the bigger problems, which do require floating charge case, Burnett’s Trustee v Grainger. it is unlikely that you’ll start a wider strategic, collaborative action. Our The author is not slow to criticise the former; the conversation about what those two gender pay gap still stands at 23%. review of the case law and the various commentaries words represent. We tell ourselves Women make up fewer than 30% thereon is most welcome. that it’s not the time or place. We of partners. A third of women who My central recommendation is that this book worry that we’ll be seen to be causing responded to 2018 Law Society of should be a “must read” for solicitors involved with a fuss over nothing, that there are Scotland research reported personal property and insolvency law and practice. bigger issues at play. We say it experience of bullying, harassment doesn’t matter. or sexual harassment. One hundred Professor Stewart Brymer, Brymer Legal Ltd. Yet, as lawyers, we know that years since Madge Easton Anderson For a fuller review see bit.ly/2L1dM7f accurate drafting does matter. Indeed, became the first woman law agent we pride ourselves on it. However, in Scotland, there remains work “Dear Sirs” is premised on an to be done. One Two Three Four: inaccurate assumption that it will be As with any lengthy to do list, a male colleague who receives your starting with a simple task can get the The Beatles in Time letter. Given that our profession is now ball rolling. So, as we enter this new CRAIG BROWN 53% female, chances are that this year, let’s update the firm style and (4TH ESTATE: £20; E-BOOK: £4.99) assumption is incorrect. Some say that prioritise equality in 2021. “This is one of the most engaging biographies “Dear Sirs” is appropriate as it refers I have read in a long while.” to the firm, not an individual. To this This month’s leisure selection is at bit.ly/2L1dM7f we would say that the erasure of Seonaid Stevenson-McCabe, all women partners in Scotland Katy MacAskill and Màiri McAllan, The review editor is David J Dickson is regrettable. co-founders, RebLaw Scotland

BLOG OF THE MONTH ukandeu.ac.uk

How much freedom does the deal finally struck or legal change, in order to secure a competitive with the EU leave the UK to make its own edge, risk provoking significant sanctions, which rules? Not much, if this analysis by a self styled would apply pending any dispute resolution. The independent research body is correct. UK might even have less autonomy than individual Titled “British sovereignty run by Europe”, it EU states. Various comments follow the blog. maintains that any UK moves, whether by subsidy To find this blog, go to bit.ly/39ipFxN

6 / January 2021 WORLD WIDE WEIRD

1 Love you like crazy “Every part of this story is truly bonkers” – the non-swimmer Scot jailed in the Isle of Man for breaking its COVID lockdown, after Late show crossing the sea by jet ski just to see his girlfriend. on no shows bit.ly/35aekhM

The Good Law Project, led by Jolyon 2 Maugham QC, has been making a name for itself Big Mac and sighs through its persistent digging into the acts of A Good Samaritan who offered Government, particularly the processes by which a to pay for a stranger’s meal at a number of high value contracts for COVID-19 related McDonald’s drive-thru got a shock services have been awarded, including to people and when she was told the bill – but companies with connections to ministers. has caused much entertainment A regular line of legal challenge has been the on TikTok. failure to publish details of these contracts as required bit.ly/2XcymDZ by the Public Contracts Regulations 2015. Perhaps irked by the constant demands (to comply with the law?), it seems that HMG has engaged the services of litigation support business Legastat, “for support in its fight”, The Times reported. “How fitting, then, that officials finally published details of the contract eight days after they are required to do so by law.” The GLP’s response? “You couldn’t make it up.”

PROFILE

3 Jim McKay We don’t Jim McKay is head of CPD & Training at the Law Society of Scotland serve... The Yaraka Hotel in Queensland, Australia, has banned emus from e Tell us about your career so far t What are the main issues for its premises and erected emu First job was at Keele University, researching the Society/your department? barricades following a spate corporate manslaughter combined with teaching Supporting the profession is number one for of bad behaviour from some undergrad criminal law. I then joined a local everyone at the Society. In CPD we play our feathered regulars. business who were in political publishing. I part by getting all the regulatory courses, like ab.co/38jPDBw found that exciting and fast paced, and moved the new partner practice management course, back to Scotland to open their Edinburgh working well online. Ditto all our training office in my early 30s. After a stint at Holyrood programme, including the annual conference in Communications, I joined the Society in June April 2021. We have put CPD packages together 2016. And very glad I did too. to help ease the financial burden, as well TECH OF THE MONTH as making CPD free to any member Dubsmash r Why did you decide who has had the misfortune to become iOS, Android, free to join the Society? unemployed. Mostly, I was ready for a change after the With the festive season behind us, best part of 15 years in a niche industry. u What’s your top tip Dubsmash will keep your spirits When I saw the job advertised for new lawyers? up. The free app it was one of those klaxon Keep an eye and half a mind lets you create and moments; it just looked right for on how the whole business and share short videos me. From the moment I walked people side works, and work of you lip syncing to into the foyer, I knew I wanted on the skills needed an audio clip, which to work there. It just seemed for that too. can be anything from obvious that it was genuinely famous movie one- going to be a great place to Go to bit.ly/2L1dM7f for the liners to animal lines. work, in all sorts of ways. full interview It’s silly and lots of fun. Available on Apple and Android.

January 2021 \ 7 PRESIDENT Amanda Millar

As we begin 2021, we should assess which of the changes enforced last year mean progress and which do not; we should prize the value of acting together as a profession; and we can only hope for progress on the major issues of the day

… welcome to the new world externally through some of the most challenging times in the that is 2021! Society’s and the profession’s history. These challenges have The first six months as your President not passed yet, but they have been and will continue to be met had me contribute to our work on head on. I believe progress has been and will go on being made climate change by being involved in if we continue to work together. Even when on different sides, as more than 80 events across the world a profession like ours requires, the goals are the same – quality So without utilising any Air Miles, and advice, representation, delivery of justice, promotion and protection I only travelled to Edinburgh once, of the rule of law, all in the interest of our civil society. for the opening of the legal year. The collaborative and often productive nature of much of this engagement On the wish list with the profession, Government, public sector and wider stakeholders My hopes for the rest of my is a positive I hope we can continue to build on. year are to see meaningful, Many technological advances have been made through this delivered progress in achievable experience. Some will stay, having brought efficiencies, savings and sustainable ways, and some processes closer to the 21st century. Some should maintaining respect for the value not, as they brought nothing but additional work and frustration, of the profession to society, and jeopardised many of the fundamental values of our justice with improved and regularly system, while still others have room for improvement or can reviewed levels of legal aid be redeveloped now that the ideas have come to the fore. payments across the board, LawscotTech will continue to work with motivated external partners prompt business recovery from and the profession, with the aim of partnership working towards the economic shock suffered meaningful and effective systems that work for all, without due to COVID, clarity in the reinventing the wheel too often. new world out of the European Union, and the opportunity Lessons from 2020 to breathe and recover some In my home our mantra is that communication is key. Regularly we of the resilience and goodwill wonder why it seems people do not communicate with one another. used up surviving much of the trauma of 2020. If 2020 taught us anything, it is that this remains more true than Oh and I’d really love not to have to explain (again) the ever. Those who communicated, were listened to and collaborated importance of the rule of law and legal aid to our lawmakers, through the challenges to find effective solutions, achieved more but I will if needed. than those who “barried on” with their own ideas and agendas, expecting others to follow. The collegiality and engagement of the profession with the Law Society of Scotland is something else I hope will be maintained for Amanda Millar is President of the Law Society of Scotland – the future. The support of Law Society colleagues and members [email protected] was invaluable to me in leading the organisation internally and Twitter: @amanda_millar

8 / January 2021 Intimations for the People section should be sent to [email protected] To advertise here, contact Elliot Whitehead on +44 7795 977708; People on the move [email protected]

ABERDEIN CONSIDINE, Aberdeen and elsewhere, have appointed Greig Brown as mortgage operations director, based at the firm’s Edinburgh office. He joins from MORTGAGE ADVICE BUREAU in Scotland, where he was head of operations.

BALFOUR+MANSON, Edinburgh and Aberdeen, has promoted two of its associates to partner, effective from 1 January 2021: Martin Walker, in the Litigation team, who joined the firm as a From top (l to r): trainee, and Private Client team Emma Letham, Hannah Prentice, specialist Graeme Thomson, Alison Reid, Sarajane who joined as a senior associate Graeme Thomson Drake, and Leanne in 2018. and Martin Walker Follan from Wright, of`Balfour+Manson Johnston & Mackenzie LLP BOYD LEGAL, Edinburgh and Kirkcaldy, has in Waverley Chambers, Tim Edward as a partner in its WRIGHT, JOHNSTON & promoted Ladhope Vale, Galashiels. Dispute Resolution practice. He MACKENZIE LLP, Glasgow, Rachael joins from , where he Edinburgh, Inverness, Brandon, DIGBY BROWN, Edinburgh and was a partner and head of its and Dunfermline, manager of its elsewhere, has announced the Commercial Dispute Resolution has promoted five members Equity Release promotion of nine members of practice in Scotland. of staff. Emma Letham, of the team, from senior staff across four of its offices, firm’s Family Law team at its associate to company director. including four new associates. MOV8 REAL ESTATE LTD, Glasgow office, becomes an Those promoted to associate Edinburgh and Glasgow, associate, and there are four , are Lee Murray, Network team announces the promotion of Tracy new senior solicitors: Hannah Edinburgh and (Ayr), Ryan Smith, General McAlpine, Head of New Build Prentice and Alison Reid, who UK wide, has Personal Injury Litigation & Intermediary Conveyancing, work in the Private Client team appointed (Kirkcaldy), and Megan Keenan, to Director of New Build & in the Inverness office, and Nigel Watson Clinical Negligence and Intermediary Services. Sarajane Drake and Leanne as a corporate David Henderson, Foreign Follan, commercial property partner to lead its & Travel (both Glasgow). Three SCULLION LAW, Glasgow and solicitors in the Glasgow office. Employee Incentives in the Edinburgh office advance Hamilton, has added to its court team. He joins from , to senior solicitor: Isabel Wosiak department with the appointment THORNTONS LAW LLP, where he was a partner and head (Foreign & Travel), and Saira of two criminal law Dundee and elsewhere, of its Employee Benefits practice. Ahmed and Zara Clark (both solicitors: Anna announce the promotion to Serious Injury). They are joined MacKay, who joins partner of Gary Mannion, CAIRN ENERGY PLC, Edinburgh by Joanne Gray, of the Serious as an associate of the Personal Injury has appointed Anne McSherry as Injury team in Glasgow. Also from BRIDGE team in Dundee, and Lucy company secretary. She succeeds promoted is Nicola Hoey in the LITIGATION, and Lucy Metcalf, of the Family Law Duncan Wood, who has retired Glasgow office, who becomes McKenna, who has team in Edinburgh; and the from the role after 22 years. a welfare rights adviser. joined the firm promotion of Janice Napier Ms McSherry has worked at Cairn after completing to legal director in Business since 2009. GILSON GRAY, Glasgow, her training at Law within the Commercial Edinburgh, Dundee and PATERSON BELL. Property team in Perth. CULLEN KILSHAW, Galashiels North Berwick, has promoted and elsewhere, and IAIN SMITH & Denise Laverty, an accredited PARTNERS, Galashiels, announce specialist in family law and the merger of their practices accredited family law mediator, from January 2021 as CULLEN and dual qualified in England KILSHAW. Iain Smith & Partners’ & Wales, to partner in the existing offices in Bank Close, Family Law team. She joined Galashiels will house the merged Gilson Gray as a legal director and enlarged Court departments in June 2019. of both firms, while their other staff will relocate to Cullen MBM COMMERCIAL, Edinburgh Kilshaw’s headquarters and London, has appointed Above: Gary Mannion, Lucy Metcalf and Janice Napier of Thorntons Law LLP

January 2021 \ 9

January 2021 \ 11 UKIDENTIFIER AND THE EU

the final chapter?

A trade deal with the EU was completed and enacted at the last minute, but is far from the end of the story. Lynda Towers sets the Trade and Cooperation Agreement in context, along with the further UK and Scottish legislation passed as the Brexit process concluded

he end of an been clear that the only serious options The agreement, and the gaps old year and on the table were a “no-deal” and The FTA itself comprises 1,246 pages the beginning trading on WTO terms, or a free trade of “legally scrubbed” text. The headline of the new agreement (FTA). good news is that no tariffs or quotas year is The FTA became “thinner” on areas will be applied to goods being exported usually seen of cooperation, on content and detail as from or imported into the UK. Less T as a time for time progressed. Thinking back over the good news is that there will be non- optimism and Brexit journey, the impact of the FTA tariff barriers of an administrative for looking now looks like a “hard Brexit” as it was nature, in the form of additional checks forward with anticipation to new understood over the intervening years when goods move across UK-EU challenges in the year ahead. Moving since June 2016. The UK is not part of borders and greater quantities of from 2020 to 2021 has certainly met the single market or the customs union. required paperwork including customs that challenge. We have vaccines There is no longer seen to be a role for declarations, phytosanitary certificates, approved and ready to roll out to help the EU Court of Justice. The UK has the product safety certificates and rules bring the COVID-19 virus under control. power to enter into its own FTAs across of origin documentation which will We are promised by the experts and the world. It is now an independent now be required to accompany goods the politicians that the world we know coastal state and sovereignty has been being traded. These will mostly be new today will start to look more like the restored to the UK. The Government requirements resulting in additional world we knew this time last year, if not claims it has delivered what it promised. costs to business. Delays seem likely exactly the same. That might have been Finally agreed on Christmas Eve, at ports, in the short term at least, the end of the story had Brexit not the FTA was signed off provisionally adding to costs. The UK has decided come into play on 31 December 2020 by the EU President on 30 December to bring its checks in incrementally at as well. and considered but not ratified by the two monthly intervals until summer With the Prime Minister now EU Parliament on the same day. The 2021, but the EU began its checks enjoying a substantial majority in the enabling legislation, the EU (Future immediately on 1 January 2021. It House of Commons, it was always likely Relationship) Bill, was introduced into remains to be seen where the financial that the UK would reach the end of the and passed in a single day by the UK balance comes to rest. transition period and leave the single Parliament on 30 December. This was There appears to be a process market and the customs union. The despite the voting agreed to manage fishing for the next days when a second referendum was against giving legislative consent five and a half years, which allows EU being suggested, a closer relationship to the bill. However, the size of the boats the right to continue to fish, albeit was being sought with the EU and Prime Minister’s majority when the bill with the amount of catch decreasing equivalence arrangements were passed the Commons, by 521 votes to incrementally, and UK fishermen being contemplated disappeared with the 73, belies the concerns, politically and allowed to sell their products in the election of the Johnson Government, commercially, as to what operating single market. This is a result which if not before. While negotiations have within the terms of the FTA and the has pleased neither side’s fishing been taking place between the UK and expiry of the transition period will fleet, suggesting that the next set of the EU over the last year, obscured by mean for the UK’s economic and negotiations to determine what the COVID-19 difficulties, it has long business future. will happen at the end of this period

12 / January 2021 but not his UK law officer colleagues. “Free movement of people between the UK The offending clauses were removed and the EU has now come to an end, by the House of Lords, led among others by Lord Hope of Craighead, whether as workers or visitors” who lodged amendments. The removal of these clauses was eventually accepted by the Government as will need to start now. as the bill which purported to allow part of the wider FTA negotiations. The FTA does not deal with the Government to depart from The amendments also provided for arrangements for Gibraltar (although international law, in this case the additional consultation requirements an interim agreement on access Protocol which was with the national authorities, including by workers across the border has part of the Withdrawal Agreement, Scottish ministers. been reached), financial services, but in a “specific and limited way”. The Act attempts to create a UK or recognition of professional This resulted in outcry from the legal single market, the working of which qualifications. Certain security and profession and led to the resignation is overseen by the Competition & enforcement arrangements are of the General for Scotland, Markets Authority for the whole of agreed in the FTA, but not to the same extent previously enjoyed. Erasmus exchanges will no longer be available to most UK students, although they will be able to access a UK scheme which has yet to be set up. A separate agreement, again settled just before Christmas, deals with the detailed implementation of the Irish Protocol and how it is going to work in practice to ensure an open trade border on the island of Ireland. At time of writing it is being suggested that the checking infrastructure in ports is not yet in place in Northern Ireland, the IT systems are yet to be fully tested, and the EU officials themselves, who have an oversight role, may be hotdesking! Free movement of people between the UK and the EU has now come to an end, whether as workers or visitors. The FTA covers some of the new arrangements, but it is clear there is still some negotiation required to finalise matters.

Much more legislation Against the background of the FTA being negotiated and undoubted relief that agreement has been reached, there remain a number of possible legal challenges and uncertainties on the horizon. The extra time afforded by the transition period means that a number of Acts have now been passed in Westminster setting the post-FTA framework within which immigration (and related social security), private international law on agreements, fisheries, agriculture, taxation and trade data will all operate. Policy development in these areas and making secondary legislation continues. The biggest constitutional change, and possible area of legal challenge, is the Internal Market Act 2020. It is perhaps best remembered

January 2021 \ 13 UKIDENTIFIER AND THE EU

the UK. The aim is to ensure that there The bill also sets up an oversight regulatory arrangements and bodies is mutual recognition of goods, which body, Environmental Standards fell away on 31 December, their UK Scottish Land Law may cover regulatory requirements, Scotland. While the detail of how replacements may not yet be in place. non-discrimination of goods (subject to this will work in practice has yet to Despite the best endeavours of those Publishing under the auspices of the Scottish Universities Law Institute, the second volume certain exceptions which are set out in be published, it is clearly seen as the drafting replacement legislation, it to this well-established and respected work is a thoroughly updated and comprehensive sched 1 to the Act), and the provision of enforcement body on the environmental may not be fully fit for purpose, since account of Scottish land law. It brings together material of significant practical importance services and professional qualifications functions under the bill. It is not beyond policies are still being developed across the UK. This is a complex piece the bounds of legal possibility that it will and the negotiations have only just in relation to the rights and obligations inherent in the ownership of land. of legislation and there is considerable be argued that the authorities exercising finished. There are bound to be lots of Key legislation includes: scope for disagreement as to when the functions being exercised under the areas where the legislation is open to and where the lines of the devolved two last mentioned pieces of legislation interpretation, and lawyers and clients • The Conveyancing and Feudal Reform (Scotland) Act 1970 settlement have been crossed. have the potential to clash. will have to work their way through to a • The Title Conditions (Scotland) Act 2003 To add further to this complication, pragmatic outcome, ultimately with the 3rd Edition, Volume 2 the Scottish Parliament passed the Time does not stand still help of the courts. • The Land Reform (Scotland) Act 2003 UK Withdrawal from the European When the FTA was announced, Michel Perhaps we now have some inkling October 2020 | £100 Union (Continuity) (Scotland) Bill Barnier said that “the clock has stopped as to the meaning of that much 9780414017832 Continuing from Volume I, the content of Volume II includes: 2020 just before Christmas. This has ticking”. He may have been correct so discussed phrase “Brexit means Brexit”. two main areas of interest. First, it far as the deadline for negotiating an Or perhaps not. In any event it can Chapter 19: General Principles of Security Rights gives powers to Scottish ministers FTA between the UK and the EU was probably be safely predicted that we Chapter 20: Standard Securities to keep devolved legislation in step concerned. However, the hands of the lawyers had better hang on to our EU PLACE YOUR ORDER TODAY Chapter 21: Floating Charges with EU law. Secondly, it enacts the clock are going to keep turning for years law books and subscriptions to EU sweetandmaxwell.co.uk core EU environmental principles to come. Despite its length, the FTA journals. It is not a dying expertise yet. +44 (0)345 600 9355 Chapter 22: Involuntary Heritable Securities into as “guiding principles still feels like a framework document It is probably also the case that many on the environment” which ministers with lots of matters still to be agreed. of our academics will face marking Lynda Towers Chapter 23: Title Conditions and other Burdens is director of will have a duty to have regard to in There are important matters to the innumerable student essays on Public Law with Chapter 24: Real Burdens making policies on the environment. UK economy, such as financial and “What is UK Sovereignty? Discuss” Morton Fraser LLP Environmental policy is a devolved related services, which are not covered for years to come. Who would envy Chapter 25: Servitudes function in Scotland. by the FTA. Inevitably, although EU them that joy? Chapter 26: Judicial Variation and Discharge of Title Conditions Chapter 27: Public Access Rights Chapter 28: Nuisance and other Delicts Chapter 29: Social Control of Land Use Chapter 30: Compulsory Acquisition Chapter 31: Community Rights to Buy Locum posititions

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14 / January 2021

TR1218702/08-20 Scottish Land Law

Publishing under the auspices of the Scottish Universities Law Institute, the second volume to this well-established and respected work is a thoroughly updated and comprehensive account of Scottish land law. It brings together material of significant practical importance in relation to the rights and obligations inherent in the ownership of land. Key legislation includes: • The Conveyancing and Feudal Reform (Scotland) Act 1970 • The Title Conditions (Scotland) Act 2003 3rd Edition, Volume 2 • The Land Reform (Scotland) Act 2003 October 2020 | £100 9780414017832 Continuing from Volume I, the content of Volume II includes: Chapter 19: General Principles of Security Rights Chapter 20: Standard Securities PLACE YOUR ORDER TODAY Chapter 21: Floating Charges sweetandmaxwell.co.uk +44 (0)345 600 9355 Chapter 22: Involuntary Heritable Securities Chapter 23: Title Conditions and other Burdens Chapter 24: Real Burdens Chapter 25: Servitudes Chapter 26: Judicial Variation and Discharge of Title Conditions Chapter 27: Public Access Rights Chapter 28: Nuisance and other Delicts Chapter 29: Social Control of Land Use Chapter 30: Compulsory Acquisition Chapter 31: Community Rights to Buy

REUTERS/Russell Cheyne

TR1218702/08-20 EMPLOYMENT CLAIMS Stress: a case for the tribunal? A recent EAT case raises interesting questions as to whether the Employment Tribunal or the court is likely to be the more advantageous forum for the employee in some workplace stress claims, Dawn Robertson believes

he judgment handed requirement for an assessment of AB’s in Croydon, in August 2008, AB was down by the capacity to conduct litigation. The EAT knocked down by a car. She suffered Employment Appeal held that the failure to assess had not a broken leg, damage to her knee Tribunal (EAT) sitting in rendered the tribunal proceedings void ligaments and nerve damage. She was T London in the case of and did not constitute unfairness to AB only able to start work two months later, Royal amounting to an error of law. and then only with a leg brace, foot splint plc v AB UKEAT/0266/18/DA & and crutches. In fact, she needed the foot UKEAT/0187/18/DA (27 February 2020) The facts splint throughout her employment and caught my attention as a former personal On her way to her first day of walked with a slight limp. Throughout injury lawyer turned employment lawyer. employment as a customer services her employment the injuries continued to This was an appeal heard by Mr officer at an RBS NatWest branch give her pain, affected her ability to work Justice Swift (sitting alone) against the and to be at work. From November 2008, decision at a remedies hearing, following AB received disability living allowance. the conclusion that the claimant, AB, had RBS did not dispute that AB’s physical suffered discrimination on the grounds condition amounted to a disability for the of disability. AB contended that as a purposes of the Equality Act 2010. result of the unlawful discrimination AB resigned in May 2014 after two she had suffered a serious psychiatric significant periods of sick leave, first in injury which prevented her from working July and August 2013 and then again for the foreseeable future and which from the end of December 2013 until her required round-the-clock care. resignation. (RBS) sought In its judgment on liability, the to appeal the Employment Tribunal’s Employment Tribunal concluded that decisions inter alia on whether (and to AB had been constructively dismissed what extent) the psychiatric injury was and that the dismissal was unfair. caused by the discrimination. Constructive dismissal resulted from The appeal was dismissed on all but breach of the implied obligation to one ground, namely that the tribunal maintain the necessary relationship of erred in concluding that there was no mutual trust and confidence and the implied obligation to provide a safe

16 / January 2021 without the unlawful discrimination. Readers may recall the seminal judgment of the then Hale LJ in Hatton v Sutherland [2002] ICR 1613, setting out the 16 principles to be applied in a claim for damages in respect of psychiatric injury caused by stress in the workplace. Propositions 15 and 16 were cited as relevant in the current case, namely: “15. Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrong doing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment… “16. The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress-related disorder in any event.” The distinction between these two propositions is clear, if nuanced: proposition 15 is intended for cases where there is a concurrent cause of working environment. In addition, the the extent of the psychiatric injury from harm, and proposition 16 is intended tribunal concluded that discrimination which AB suffered. for cases where there is a pre-existing had taken place: first, by RBS failing to As can be seen, although this was susceptibility for the individual to make reasonable adjustments relating (inter alia) an Employment Tribunal claim, suffer the harm alleged, but a lack of to AB’s work station and requiring AB aspects of the case read like a common concurrent cause. to work on a branch till; secondly, as a law damages claim for workplace stress. Applying proposition 15, the result of comments made to or about AB With that in mind, the question arises: is Employment Tribunal apportioned on five occasions; and thirdly, by reason workplace stress handled better in the the cause of harm suffered by AB, of a failure to permit AB to transfer to Employment Tribunal or in the court? concluding that 75% was attributable another branch. to the unlawful discrimination and 25% AB’s contention was that, as a result Effects of the discrimination to the accident. Having reviewed the of the discrimination, she suffered As already mentioned, one of the core tribunal’s treatment of the conflicting from severe depression. A consultant issues of the case was whether – and expert evidence, the EAT considered psychiatrist engaged as an expert witness to what extent – the discrimination had that its assessment was one which was for AB, diagnosed her as suffering caused AB harm. “reasonably available to it” and that its from a severe depressive disorder One ground on which RBS sought apportionment of harm did not, therefore, with psychosis. His stated conclusions to appeal the tribunal’s decision was disclose any error of law. As a result, were that AB showed “severe signs that it should have reduced the amount RBS’s appeal in this regard failed and and symptoms of multiple psychiatric payable to AB to take account of “the the assessment that 75% of the harm disorders, namely severe depression, possibility that her psychiatric condition was attributable to its unlawful disability anxiety and conversion disorders as would have occurred in any event by discrimination was upheld. well as psychosis”. Crucially, he held the reason of her pre-existing vulnerability view that both the tribunal (presumably and other psycho-social stressors”. Employer’s knowledge of the then extant proceedings) and In other words, RBS’s position was claimant’s disability discrimination were “the primary causes that the tribunal was wrong not to As noted earlier, RBS did not dispute that of the current presentation”. reduce AB’s compensation on account AB’s physical condition, following the RBS’s expert consultant psychiatrist of the possibility that her psychiatric accident, amounted to a disability for the unsurprisingly disagreed, both as to condition would have developed even purposes of the Equality Act 2010. the cause of AB’s psychiatric injury and The status of her mental condition was the extent of that injury. As a result, it less clear, however. In his EAT judgment was left to the tribunal, first to decide Mr Justice Swift stated that “either the whether AB’s psychiatric condition “Constructive dismissal resulted tribunal concluded, or it was common was the consequence of the acts of ground, that AB suffered from a mental discrimination that had occurred at from breach of the implied illness that amounted to a disability”. work, or whether it had been caused obligation... of mutual trust and He further noted: “During the by matters predating those events (in course of her employment AB had two particular the accident); and secondly, confidence and... to provide a safe significant periods of sick leave in to resolve the disputes of evidence as to working environment” July and August 2013 when she

January 2021 \ 17 EMPLOYMENT CLAIMS

was absent from work because those involved in workplace of ‘low mood and physical stress litigation. While there pain’; and then from the end may be concern around of December 2013 until her whether disability discrimination resignation at the beginning can be proved, there should be no of May 2014 when she was concern around what can be recovered absent from work by reason by way of compensation. of stress.” The English case of Sheriff v Klyne Notwithstanding the foregoing, Tugs (Lowestoft) Ltd [1999] IRLR 481 he went on to say: “the tribunal further confirmed that an Employment Tribunal concluded that RBS could not have has jurisdiction to award compensation reasonably been expected to know that by way of damages for personal injury by reason of these matters AB suffered including both physical and psychiatric from a disability for the purposes of the injury, caused by the statutory tort of Equality Act 2010” (emphasis added). unlawful discrimination. The Court of From the above extracts, it is clear Appeal confirmed that the statutory that the Employment Tribunal has drawn language is clear that a claimant is a distinction between, first, knowing entitled to be compensated for the loss that AB suffered from a mental illness and damage actually sustained as a that amounted to a disability during her result of the discrimination: the question employment and, secondly, appreciating stress claim can be successful in the was one of causation. that it was a disability which gained her Employment Tribunal, its unique set of While unfair dismissal compensation protection under the 2010 Act. circumstances make it a difficult case on is capped in the Employment Tribunal, In other words, the tribunal accepted which to rely too heavily. Unusually, the damages arising from unlawful that RBS did not know that AB had claimant had a physical disability which discrimination are not. Therefore, a mental illness which constituted a led to a difficult working environment, provided the claimant can demonstrate disability for the purposes of the 2010 resulting in workplace stress which their loss was caused by the unlawful Act. That the tribunal nevertheless developed into mental illness. Added to discrimination and can prove the loss found in her favour would be staggering this was the need for the employer to alleged, an unlimited award, such as that but for the fact that AB already had be aware of a disability: again, had the made in the instant case, can be made, a physical disability as a result of the claimant not been able to rely on its including a claim for injury to feelings, accident, and one assumes that the knowledge of her physical disability, it is akin to an award for pain and suffering discrimination claim succeeded as a unlikely that she would have succeeded. (solatium). As a result of her requiring result of what might be said to be the When comparing what is required 24/7 care, the damages claimed by primary (physical) disability as opposed in the court to what is required in AB were considerable, and the overall to the secondary (mental) disability. the Employment Tribunal, there outcome of the remedies proceedings Put another way, it appears unlikely are similarities and differences. The was an order that RBS pay AB that AB would have succeeded in her courts require proof of “an identifiable £4,670,535, together with pre-judgment discrimination claim without that factor, psychiatric or psychological illness or interest of £54,266. given the tribunal’s conclusion that condition”, whereas under the Equality her employer did not know and could Act a disability is a “physical or mental Concluding comments not have reasonably been expected to impairment” and the impairment must The personal tragedy at the centre of know that she suffered from a mental have “a substantial and long-term this case has largely been overlooked illness that constituted a disability for the adverse effect” on a person’s “ability to for the purposes of this article. It should purposes of the 2010 Act. carry out normal day-to-day activities”. not be ignored, however. To give some Although very different approaches, context, the following was recorded by a So, which forum – court or being able to meet one of those tests medical consultant who examined AB for employment tribunal? will often also mean being able to meet the purposes of the case: One generally views the court as the the other: neither is, on the face of it, “[AB] presented with her back to me. appropriate forum for workplace stress easier than the other. In terms of other She was observed to perform a variety of claims – see, for example, Cross v criteria, causation is a requirement in movements throughout the assessment, Highlands & Islands Enterprise 2001 SLT both court and Employment Tribunal for example, she was observed to slap 1060; Green v Argyll & Bute Council, 28 proceedings (see the comment on Sheriff herself, scratch herself, and rock to February 2002, unreported; Taplin v Fife below), and foreseeability, at least and from. She communicated broken/ Council, 17 December 2002, unreported; superficially, is similar to the question of stuttering speech accompanied by other and, more recently, cases such as knowledge of the employer in a disability non-verbal vocalisations.” Easton v B&Q plc [2015] EWHC 880 discrimination context. The facts of this case may be (QB), MacLennan v Hartford Europe Ltd Limitations aside, given the relative Dawn Robertson, remarkable in terms of the severity of [2012] EWHC 346 (QB), and Miller v North lack of success of pursuers claiming employment law the psychiatric injury suffered by AB, Lanarkshire Council [2019] SC EDIN 61. workplace stress in the Scottish courts to partner, Rooney primarily as a result of workplace stress. While, on the face of it, this case date, the Employment Tribunal is a forum Nimmo As unusual as the case may be, it is a supports the view that a workplace which should always be considered by sobering reminder to us all.

18 / January 2021 EQUALITY

Are discrimination comparators outdated?

Comparators are part and parcel of most discrimination claims, but is the requirement to find them always helpful? Musab Hemsi and Simon Mayberry argue that more flexible rules would achieve a better balance

oth authors are relatively long Comparators are the longstanding barometer in the tooth when it comes to our judiciary must use. But the profound dealing with discrimination mismatch between the methodology of using law. Both have spent years on comparators and the modern realities of work B either side of discrimination renders them increasingly unhelpful. Far too cases, grappling with the often, they place a legal hurdle for litigants in Equality Act 2010 and its predecessors, all the person to trip over, perhaps taking advantage of while unable to shake the inkling that the reality that in today’s increasingly mobile, something didn’t quite feel right. knowledge-based and differentiated economy, Equality is, to our mind, a work in progress. comparators will often not be found. As a legal, ethical and moral imperative, why do we invest so much time, energy and cost into A need for balance so many multi-day tribunal hearings, poring To go further, our experience is that such over the minutiae of legal doctrine? It was inflexibility in the evaluation and adjudication not so long ago that we marked the 10-year of workplace disputes no longer accords anniversary of the Equality Act coming into with the inquisitorial nature of the UK force. This seems like a sensible juncture to Employment Tribunals. take a step back and examine how powerful a By treating comparators as an essential weapon it has been in the war on prejudice. element of discrimination claims, tribunals One school of thought is that the state of have their hands tied and face having to turn contemporary, statutory discrimination law is a blind eye to unlawful acts of prejudice, flawed; and one of the principal flaws is the bias and inequity. requirement for comparators. The essential requirement of comparators Put simply, comparators are those who unnecessarily narrows the scope of are like a discrimination claimant but for the discrimination laws and disregards the central protected characteristic being relied on in the lesson from claims such as harassment: claim. Comparators have existed in our labour discrimination can occur without a comparator laws for decades, so the Equality Act cannot be present. It forces us to apply a binary logic blamed alone for any defect they contain. to disputes where, in practice, it is more often the case that discrimination is covert, multi- Appealing, but a hurdle layered, or unconsciously being carried out Both conceptually and methodologically, why by the perpetrator. The growing complexity do we even have comparators? Seriously, take around personal identity and the continued a moment to think about it. Judges are bound expansion of protected traits means we are to consider comparators in the vast majority of headed towards comparisons which produce the discrimination claims that come before them false certainties, if we have not already (certain claims, such as discrimination on the arrived there. grounds of pregnancy/maternity, do not require We see a need for equality law to evolve a comparator). Comparators appear to be the in order to balance prescriptiveness with favoured heuristic for observing discrimination. simplicity. We do not propose doing away with We can see the appeal. Lawmakers have comparators (actual ones or their hypothetical created a process where tribunals are able abstracts), but rather removing them as an to evaluate and adjudicate workplace claims essential step in proving discrimination. without the need to engage too deeply in Doing so would allow the growth of our workplace dynamics. It is a rigid, prescriptive equality laws and empower those who Musab Hemsi is a partner, and Simon Mayberry structure of law. If no comparator can be adjudicate on them to replace arbitrary a senior associate, at LexLeyton identified, the claim fails. Easy peasy. barriers with logic and reason.

January 2021 \ 19 LAND REFORM Land reform: 25 years in perspective

Land reform has featured prominently in the output of the Scottish Parliament, but Mike Blair believes the work of the Scottish Land Commission could bring further significant change in the years ahead

renaissance of land reform is probably one Community Empowerment (Scotland) Act 2015 and the of the major achievements following the Land Reform (Scotland) Act 2016. It has nevertheless taken foundation of the Scottish Parliament in longer to bring some of these provisions into force, and the 1999. It’s worthwhile remembering where “sustainable development” right to buy in the 2016 Act is only A things were a quarter of a century ago. The slowly emerging from the nest. Parliament was only a political project. Andy Wightman’s book Who Owns Scotland was only to be Scottish Land Commission published in 1996. It was still a few years before the Land In order to maintain the impulsion on all matters land reform, Reform Policy Group, established following the Labour victory the 2016 Act created the Scottish Land Commission. This in the 1997 election, was to report. Following the consists of a board of five plus the (Agricultural) Tenant establishment of the Parliament, one of the first land reform Farming Commissioner; it has been established in Inverness endeavours was to introduce the legislation formally putting since 2017. the feudal system six feet under, though it was seen in the The overarching statement of purpose behind the profession as largely a “conveyancing” issue at the time. Land Commission is the “Land Rights and Responsibilities Statement”, published following the 2016 Act. The six The last 20 years principles within the statement are designed to promote the There have been two flurries of activity. The first major balance between public and private interests and respect for piece of legislation was the Land Reform (Scotland) human rights. They state that there should be a more diverse Act 2003. This enshrined in law the so-called “right to pattern of land ownership and that local communities should roam”, more properly the right of responsible access, have land-based opportunities which will and brought in the pre-emptive community right to buy contribute to the community’s wellbeing. and the crofting community right to buy. Other principles mention the importance The next push was when the 2014 Land Reform of landowners acting as Review Group proposed a wide range of changes, stewards for future with suggestions for policies to modernise and generations, diversify land ownership and transparency encourage sustainable of ownership development. This led to information significant alterations to and the wish the community right to for greater buy, contained collaboration in the and community engagement. Some sectors of the legal profession have necessarily paid close attention to some of the Commission’s work, for example the various codes and guidance documents issued by the Tenant Farming Commissioner to help encourage good relations between agricultural landlords and tenants. These have been generally well received. The Commission has not been idle elsewhere, and numerous papers have been prepared since 2018. It divides its non- farming work into broad areas: “good practice”, “ownership”, “housing and development”, and “tax and fiscal”.

20 / January 2021 Commission output All these decisions involve a policy choice. Is it better to spend Amongst the “good practice” papers which the Land money acquiring a piece of Scotland for the community of Commission has produced are several about community that area, or could the same money be used for refurbishing engagement, diversification of ownership, and good a school? Also, once the community are owners, sustainable stewardship. Under the heading of “ownership”, perceived management and generating revenue without going back as fundamental by many, there are extensive papers on the to the taxpayer are not automatically easier than for the website about comparable international experience and issues previous owner. arising from the scale and concentration of ownership. 3. Legal uncertainties. Land reform is trying to do two Under the “housing and development” thread are comments things: changing the rules, and also trying to encourage on ways of improving the use of derelict land and suggestions different approaches in the practice of people who use the for improved delivery of “more homes and better places”. land. In recent legislation, there is a tendency to make In particular, it points out that in the last 50 years, general statements on rights which the people are to the share of the national wealth taken up enjoy, without much detail on what can be done by the ownership of dwellinghouses has to assert these in practical situations. General increased significantly, but this begs the statements of rights, when put into legislation, do question whether anybody other than the not make it easy for a lawyer to advise a client, baby boomers is better off in a practical public or private, on what they can actually do in sense. Under the heading of “tax and fiscal”, the real world. This lack of clarity does not help the Commission has ranged quite broadly, a court in making decisions, and there is a lack of examining the scope for that hardy annual the that specification which most of us were taught “land value tax”, and discussing other ways was necessary in something called “law”. People of sharing the value of land consequent on are entitled to know what the rules are. changes due to public decisions, as for example by 4. Governance. While it is clear that much if not most the planning authorities. community based land management has been beneficial, or The cynics amongst the profession might suppose that the has at least the potential to be beneficial to the community it commissioning of these papers is merely a way of recycling serves, there are examples where the quality of governance taxpayers’ money to academics and can only be described as weak and subject consultants. We can see however that to local currents of opinion. Back in the had the Commission not existed, most of “A major part of the history of the 18th century, town councils controlled these ideas would have remained within law in Scotland is a succession considerable assets and your prospects academic or activist circles, without of getting a deal with “the town” went up necessarily getting a broader exposure of changes to the way in which substantially if you were a friend of the and consideration publicly. Anybody the land, such a major asset, provost or the bailies. Inevitably, the same involved in acting for developers, whether risk applies in more modern community commercial or residential, could do a is owned or managed” bodies, where “changes of regime” or mere lot worse than read some of the Land inefficiency have resulted in unfairness Commission papers to see where Scotland might be headed. to others. “The community” is at present little regulated and Initially, land reform was sometimes seen as very much a there is little recourse against what those in charge may rural and countryside activity, and not something that should do, but a wider collaboration, as envisaged in the intended concern bigger businesses in urban settings. We should community land partnerships, will be part of the way forward. however be in no doubt that some of the proposals would represent quite a change to many types of business, both Land reform is old hat! urban and rural. We should remember that a major part of the history of the law in Scotland is a succession of changes to the way in which Future issues land, such a major asset, is owned or managed. Consider Land reform, which was a fairly general expression back in the the Leases Act 1449, before which there was no real right late 1990s, has now become much closer to the mainstream in a lease; and the abolition of the heritable jurisdictions in in today’s Scotland. There are however a number of significant 1747 after the ‘45, which was a drastic bit of land reform on questions as to where it may head in the future. any view. Although not so perceived at the time, the transfer 1. Legislative time. The Land Commission has been busy of value which the development of the crofting legislative publishing papers and issuing advice to government. This is structures has brought about has been immense. its remit. The same can be said of its cousin the Scottish Law Consider also the Agricultural Holdings (Scotland) Act 1949. Commission. It is notorious however that despite the creation The farm tenants, who had helped keep the country fed during of the Scottish Parliament, the availability of time and civil the U-boat campaign of World War 2, were given security service resources to put through legislation suggested by the of tenure. The same can be said of the Town and Country Law Commission is pretty scarce. It remains to be seen just Planning Act in 1947 and the abolition of future feuduties in how much legislative time will be made available for the Land 1974. All these interventions in the way land is owned and Commission’s suggestions. used were thought to be a big deal in their day, but are now 2. Money, priorities and sustainability. The Scottish part of the furniture. Government controls the purse strings. It is for it to say how We are probably too close to the current phase of land much money goes into the land fund, which serves to support reform to see just what changes may flow from the recent community buyouts. The majority of community buyouts, efforts to promote it, but nobody should be in any doubt that and certainly the larger ones, have required considerable Mike Blair, the suggestions of the Land Commission, if carried into effect partner, assistance from the land fund to make them happen. The as policy, would mean that our successors in the profession Land & Rural prominent examples of Gigha, Eigg, Ulva, Portobello and Business, will be living in a rather different Scotland from the present, Assynt all relied to a considerable extent on public funding. Gillespie Macandrew never mind 25 years ago. Keep watching that space!

January 2021 \ 21 IN ASSOCIATION WITH

Why your firm should outsource your cashroom Bring your systems up to date without a big upfront cost

usinesses are tightening their belts and The expertise you need looking to outsource – creating smart A move to outsource is akin to asking for a helping hand – solutions to unlock new levels of efficiency a big leap for some legal professionals, I know! Plenty of smaller in their practices. It is now not enough to firms outsource not because they want to cut their overhead B continue operating in an antiquated way. or they can’t find qualified staff, but because they simply don’t It’s all about convenience and minimising have the in-house expertise. In growth situations they don’t have the slack in every area of your practice. And with remote time to develop it either. In that case, seeking out a third-party working going nowhere fast, you need to be sure you are provider is perhaps the smartest move a firm can make. prepared with the right systems and support in place. Supporting growth Focus on what you want to do While growth is usually a good thing, a business can experience SME legal practices tell me that for the most part they still growing pains. Managing growth is often difficult, and your firm utilise outdated and ineffective tools for their legal accounting might struggle to keep up with demand. Teaming up with needs. If you fall into this category, you could be putting your a third-party provider is the best thing you can do. Again, firm at a significant disadvantage. look at cashiering as an example. You might have some great Whether you are stuck in the stone age of paper systems, cashiers already in place, but they’re suddenly overwhelmed using accounting software that is not tailored to your practice, by the volume, and you just keep growing. or spending tens of thousands of pounds on salaries for in- An outsourced cashroom adds a team of highly trained house cashiers, now is the time to make the change to effective, people to supplement your existing team. They exist to support streamlined, flexible and compliant ways of working. If you you if your cashier has moved on or retired, if you are starting put your trust in others to run your cashiering, management up a new firm, or you are just looking for a way to streamline accounts and payroll functions, you can focus on what you your cashroom. Having a fully qualified team behind you can want to be doing – feeing and running your business. help run your day-to-day accounts functions while making sure Diane Ireland, legal process engineer at Inksters Solicitors, that your firm is practising within the Law Society of Scotland’s started using our Outsourced Cashroom Services a few accounting rules, and provide you with management information years ago and had this to say: “It was a big decision for us to and management accounts allowing you to focus on growing outsource our cashroom function. We have our own in-house your business. cashier, but with Denovo Cashroom Services supplementing this function we can deliver day-to-day financial transactions Access to technology much more efficiently. This has allowed us to free up time Infrastructure cost is another major concern when it comes for our cashier to focus on more corporate financial tasks. to in-house services. Businesses that outsource HR might We no longer worry about holidays/absences. Working with choose to do so because implementing a new payroll system Denovo Cashroom Services ensures the continual running is expensive. A firm that sends cashiering out of house might of this essential function. Denovo Cashroom Services provide be doing so because the Law Society of Scotland regulates us flexible, professional and knowledgeable services with how firms manage clients’ money. The solicitors’ accounts rules a real friendly and personal touch, delivering a compliant are complex and technical, but mandatory. A legal cashiering finance function.” service takes away that worry, as your third-party provider ensures compliance with the accounts rules. They have The obvious benefits already invested in the technology needed to deliver the The major reason law firms opt to outsource is because it really services you seek – and staff are already trained to use it. does save time and money. Take cashiering, for example. By Remember… outsourcing helps you get the focus back contracting with a third-party provider, you get instant access on your core business and control costs at the same time. to a team of expert SOLAS qualified staff who interact with you and your clients using the latest technology and techniques. Not using Denovo to manage and grow your business? Your clients get better care, your outsourced cashiers resolve Get a free demo via www.denovobi.com/contact-us and see issues faster, and you don’t need to deal with high turnover why some of the most successful SME law firms in Scotland use or infrastructure costs. Everybody wins! Denovo as their whole practice management software solution.

22 / January 2021 Scottish lawyers... is this you?

Running a law firm can be messy and demanding, especially these days. Your “must do” list seems never ending. At Denovo we’re all about creating smart solutions to unlock new levels of efficiency Case Outsourced Legal in your practice. Management Cashroom Accounts

Email [email protected] Call 0141 331 5290 Visit denovobi.com PEOPLE DEVELOPMENT Success: the hidden price How do we measure success in law practices? Do we tolerate behaviours by those we regard as successful, that impact negatively on others? Performance coach Graeme Thompson believes that achieving our best involves something different

an there be anything better than standing on offender is the star fees performer and the clients like them, top of the Olympic or Paralympic podium, that somehow seems to make it OK? Same with a gold medal having the medal you have desired for so winning coach, who is set to deliver again with an athlete at long, put around your neck? And then the the next Games. C public adoration at your achievement? So how are the leadership, or you as the leadership, in your It has got to be a perfect scenario, hasn’t legal firm seeking to ensure this culture is not prevalent? It is it? That actual moment, and what follows. However, it does a difficult challenge, but not an impossible one. Acknowledging not guarantee or sustain you forever. For some athletes it issues is the starting point. That can be uncomfortable and disappears very quickly and turns into a challenging emotional unpopular, but that’s part of effective leadership. Then start and mental situation. looking at the causes and effects. Achieving partner status in a legal firm could be considered I attended a recent international lawyers’ webinar, where an equivalent podium moment. You have worked hard for a the partner development coach at explained long time to be awarded this title. Now you have enhanced how that firm had reduced its profit targets because the status, professionally and even socially. You have arrived. singular focus on fees was having a detrimental effect on In both scenarios, has the journey prior to achieving the the mental and emotional status of the staff. She had been goal been worth it? This is a question that many ask. at the forefront of these negotiations with the firm’s leaders, In the last 20 years, Team GB at both the Olympics and evidencing to them the longer term negative impact of trying Paralympics has had an incredible rise of medal success. to maintain annual record breaking profit levels. There was a London 2012 was a fantastic event for the host nation. It then human cost to this. went on to an unprecedented achievement at Rio 2016: Great And there is real evidence of the human cost. In the United Britain became the first host nation to achieve more medals States, in 2016 the American Bar Association, together with at the following Olympics. Unfortunately, due to COVID we do the Hazelden Betty Ford Foundation, in a study of attorneys not know yet what the 2020/21 Olympics will bring, but since (bit.ly/37ZVFHi) identified significant mental health concerns Rio, troubling issues have been uncovered in numerous sports. in the legal profession. Of the attorneys surveyed, 28% UK Sport oversaw the investment into all the sports and reported experiencing symptoms of depression, 19% was there to monitor progress, including standards and ethics. reported symptoms of It was overseer of this elite sporting system. Its mantra was anxiety, 23% experienced “no compromise”. Everything was about medals. It was the symptoms of stress and only currency of success. 21% qualified as problem Recent investigations, such as into British cycling, canoeing drinkers. and a present one in gymnastics, have shown some very poor behaviour by coaches. These include coaches who led athletes to gold medals, who were revered by the system and bestowed with honours. Bullying, fat shaming and even an accusation of sex for selection are all examples of this poor behaviour.

Success in law: a human cost? Achieving fee income levels is often a sole focus of success for lawyers. “What gets measured, gets done” – no compromise in action again. So what behaviours are ignored, accepted, or even worse, promoted in law firms because they contribute to this sole focus? Are there practices and traditions in terms of behaviours going unchallenged because “it is the way we have always done things” to be successful? Or although everyone knows certain behaviour is inappropriate, if the

24 / January 2021 What makes us peak? “When I worked with effective person in the office? Change does not only come from the top. People need help with finding balance in The millennial generation, who account athletes, I needed to their work-life blend. Balance is underrated for 25% of the world’s population, are know about their as a status to be in, probably because it different from previous ones. JP Box sounds like having to make compromises. It in his book The Millennial Lawyer: How whole life. They is not. It is challenging to balance the right Your Firm Can Motivate and Retain Young were a person first mixture of demands on you. It requires real Associates, identifies that while Generation ability to find it. It needs real commitment to Xers and Boomers are comfortable finding and an athlete be sustained. Most importantly, it can bring activities outside of work to give back to second” long term positive outcomes for people and good causes, charities and communities, businesses alike. Suppose, for example, millennials believe that work should staff turnover rates, caused by some of the include both making a living and making the world a better issues identified by the 2016 American Bar Association study, place. They want more for their work to be part of a cause or were reduced and less time and money could be spent on a social good. They will look at work-life blend rather than having to recruit. work-life balance. This combines with the fact that the number one complaint Know yourself, manage yourself about bad bosses is that they do not take any interest in the On a personal level, when I have been working with such whole person and purely consider their work activity. When athletes, and recently with lawyers, support is needed to raise I worked with athletes, to understand what motivated and their awareness of their own values and beliefs. That includes affected their performance, I needed to know about their identifying their fears and challenging their assumptions. whole life. They were a person first and an athlete second. This leads to a heightened understanding about themselves Often the reasons for less than expected competition results and their ability to know what impacts on them emotionally lay outwith the competition and the training arena. and mentally. The final stage is self-management, which For those with strong professional ambition, be they is allowing someone to have more options on their future lawyer or athlete, the self-pressure to compete and achieve choices and behaviour because they understand and manage is immense. Much of it is innate within them. These are better the situations they encounter. This type of coaching double edged characteristics; in that they make the individual is valuable for people at all stages of their career. As I said successful but they can have damaging effects. The endless earlier, for some athletes, after winning their medal is when pursuit of perfection and ambition is like that. The individual’s they need most help. Earlier interventions might have surrounding organisation and culture should be seeking to help prepared them better for that moment. them cope with these personnel characteristics. The concern It is still right to set your sights on future high targets, and for these types of people is that if their company or profession they can bring elation, satisfaction, and enhanced futures. promotes, allows, or ignores the negative traits, those traits will However, when setting them and whilst on that journey, make only become more dangerous in their impact on the individual. well informed decisions, through strong self-awareness of Be it the “last to leave the office” culture, your own personal values and behaviours along the way. or who can attend most network events Remember that 80% of what people remember about us, is of a week’s evening, these have how we made them feel, not what status we held. become the races people want to Also, critically recognise the impact on you, and all other run. How about taking the view that aspects of your life, of the journey you choose. Whatever the if someone can do their job in regular system, or the profession, seems to provide or even impose as hours, they must be the most the way to do things, there are always choices. They remain your choices and nobody, however hard it feels at times, can take that away from you.

Graeme Thompson has 20 years’ experience in elite sport, having led performance programmes in rugby league, water polo and curling/wheelchair curling. He also has 20 years’ boardroom experience including chairing the world governing body of rugby league. He is now an executive coach, working across both business and sport. If you would like to discuss any issues highlighted in this article, you can contact Graeme Thompson confidentially Graeme at horizons.consulting@ Thompson outlook.com.

January 2021 \ 25 HEY LEGAL Hey Legal: creating a community in a time of crisis Launched a year ago to provide online CPD and a community platform for Scottish lawyers, Hey Legal has responded to the COVID-19 crisis by reaching out to support, and entertain, the profession

a year like no other, a sense of community experienced by the profession, Hey Legal sought to create has never been more important. However, resources that could assist. From advice on emergency SLAB coronavirus presents a unique challenge to payments, working remotely, wellbeing strategies, to updates our community, one which requires a about licensing and the courts, Hey Legal became a platform In collaborative, cooperative and digital for those in the know to share their knowledge. approach. We are fortunate to be part of a profession that strives to be collegiate, innovative and adaptive The Hey Legal Quiz – one which, in times of crisis, endures. One response to the To provide some lighthearted entertainment during lockdown, coronavirus crisis put community above all else, creating a Hey Legal began running the Hey Legal Quiz. The quiz is digital platform for Scottish lawyers to come together to learn, an interview of 20 questions with some of Scotland’s most stay connected and laugh. notable legal figures, including Donald Findlay QC, Lady Hey Legal launched in January 2020, with the aim to Rae, Lord Matthews, Dean of Faculty Roddy Dunlop QC, and create smart learning and digital content for Scottish lawyers. Keith Stewart QC, the newly appointed Advocate General for Its vision was a digital library of content that lawyers Scotland. The quiz is unique as it asks them to consider not would access at times that suited them – waiting at court, only their life in the law but their personal lives too. Edith commuting, at the gym, on a walk or at home. The Forrest, advocate who created and hosts the Hey Legal business model was similar to Netflix, a valuable Quiz said: “Every time I speak to colleagues or go monthly subscription allowing unlimited access to court, somebody is asking who my next guest to a growing content library. The Hey Legal is. So, it has proved to be a highly successful mission states: “We aim to inspire new ideas project in lockdown and beyond.” and thinking in Scottish law firms. We want to The quiz, on the Hey Legal YouTube channel, reimagine learning for Scottish lawyers. Hey has been popular not only with the legal Legal is designed to change the status quo from profession, but also with the public and the doing only the minimal required CPD hours, to press. Why? It provides an honest and sometimes participating in engaged daily learning vulnerable insight into what is often a through choice.” guarded and mysterious profession. It The thinking was that, by making also provides learning but doesn’t at learning easy and enjoyable, lawyers “The focus was on black all feel like work. would learn much more and be able letter law, wellbeing and to help clients more. The focus was on What next? three areas: black letter law, wellbeing, business development, Having been in operation for just and business development, as for as for lawyers to a year, the small and agile team at lawyers to prosper they need all these Hey Legal are just getting started. A aspects to be working well. prosper they need these news section has been added and the all to be working well” team have also been running virtual Response to lockdown conferences. As lockdown began, Hey Legal decided to remove its Ally Thomson, founder of Hey Legal (pictured), said: “2020 subscription element and make all of its content free during has been a year like no other, especially in terms of launching lockdown. The thinking was that lawyers who were suddenly a business. We have kept our core content free thus far and at home would benefit from the content already created, established a place in the Scottish legal sector, and we will and access for as many people as possible would be a now look to build out our business model with some paid good thing. The response was staggering, with hundreds of for events and memberships. We are indebted to all the accounts being opened over the first few weeks from across contributors who have engaged with us. We are kicking off the Scottish legal landscape, and a community now at around the new year with our ‘Shape Your Success in 2021 Summit’, 3,000-plus across its various platforms. In unprecedented with the Lord President, Lord Carloway providing the keynote times the business model took a back seat; the engagement introductory talk and some excellent expert speakers lined up. showed this to have been a warmly received initiative. The aim is to help attendees get a plan for the year ahead.”

Coronavirus essentials When lockdown came into force in Scotland, it presented To create a free Hey Legal account, visit heylegal.co.uk many challenges for lawyers in terms of working methods and and to contribute your knowledge to Hey Legal, please getting new clients. Recognising the difficulty, and even panic, email [email protected]

26 / January 2021

Briefings

that the accident occurred without fault on Rivers Leasing Ltd v Patrick [2020] SAC (Civ) 19 Who has the his part. It was insufficient to give a possible (20 February 2018) Turnbull alternative explanation consistent with no allowed an appeal to be received when a note of final word? negligence on his part. The defender required to appeal had been sent in circumstances in which establish facts from which it was not possible to it could be reasonably anticipated that the note Issues relating to appeals have draw an inference of negligence. would be received on time, but inexplicably had featured strongly in recent civil The Lord President further stated that the been received 12 days later than expected, even procedure decisions, as this month’s fact that lower speed improves vehicle handling, allowing for it being sent on 14 December. roundup shows, as well as points on especially in cross winds, did not require expert In The Parachute Regiment Charity v Hay expenses and a refusal of amendment evidence. It was a matter of ordinary everyday [2020] SAC (Civ) 23 (30 August 2019) Sheriff experience. Principal Stephen refused such an application. In SCA v MMA [2020] CSIH 66 (27 October That decision in the circumstances may well Civil Court 2020) the appellant made a submission for not come as any great surprise. However the the first time in the appellate court. The Lord observations by the President of the court LINDSAY FOULIS, SHERIFF AT PERTH Ordinary had not been invited to make a should act as a warning to practitioners. A final calculation on the basis of inferences drawn judgment in terms of s 136 of the 2014 Act had Appeals from one of the defender’s witnesses. As a been pronounced dated 16 May 2019. An appeal Successfully appealing against a judgment in result, there was no error on the part of the had to be taken within 28 days. The note of circumstances in which the focus of the attack Lord Ordinary and thus nothing to warrant the appeal was lodged on 10 July. The interlocutor is the determination of issues of credibility Inner House upsetting a careful assessment dated 16 May 2019 was extracted the day and reliability by the judge at first instance is made at first instance. If effect had been given before. It would appear that on 17 May the a difficult task. The court at first instance has to the submission, there were consequences sheriff had directed the clerk to contact parties seen the witnesses and thus is accepted to be which had not been discussed in evidence. to confirm whether interest was sought and if in a far better position to assess these issues. The court was accordingly not in a position to so from what date. The appellant responded on Accordingly the observations by Lord President unravel the Lord Ordinary’s decision and identify 6 June that interest should run from the date of Carloway in Woodhouse v Lochs and Glens appropriate alternatives. decree. Her agents then inquired of the sheriff (Transport) [2020] CSIH 67 (30 October 2020) In Finlayson v Munro [2020] SAC (Civ) 18 clerk when the interlocutor would be issued. are worth noting. (3 December 2020) Appeal Sheriff Holligan Thereafter the pursuers intimated an account of The Lord President observed that an appellate observed that expert evidence is not evidence of expenses which also detailed the interlocutor court had to bear in mind the limitations of the primary fact and the appellate court can take a dated 16 May. Further email correspondence appeal process, which was narrowly focused contrary view. Further, when no findings in fact indicated the appellant’s dissatisfaction that the on particular issues rather than the evidence have been made by the judge at first instance, interlocutor bore the date 16 May as opposed as a whole. However, he continued, when an the appellate court can review the evidence and to 6 June 2019, and that the defender intended appeal court is not reviewing primary facts but make its own findings. to appeal. Senior counsel who had conducted inferences from these facts, the court can more Sheriff Principal Murray in Alam v Ibrahim the proceedings was instructed to draft the note easily reverse the first instance conclusion, [2020] SAC (Civ) 20 (1 December 2020) noted of appeal. This was lodged the day after the especially one which did not involve credibility that, in general, where a fact finder did not interlocutor was extracted. and reliability. This was particularly the case if clearly express and provide a brief explanation Sheriff Principal Stephen rejected any the matter to be reviewed is the application of for their rejection of evidence, the door was suggestion that the date of the interlocutor the law to facts, whether primary or inferential. opened to a potential appeal. In assessing was erroneous. What took place on 16 May In such a situation, the larger appellate court whether such an acceptance or rejection of clearly constituted the pronouncing of a final can be beneficial in playing a significant part in evidence was justified, the appeal court, while judgment. It was unfortunate that the issue arriving at the correct decision. That court, when unable to observe the demeanour of a witness, of that interlocutor had been delayed, which engaging in the intellectual process of applying could analyse the transcript of the evidence to significantly reduced the period for lodging the law to the facts, or drawing inferences from determine whether there was a basis for the a note of appeal. However, an appeal could primary facts, may be more objective and less decision of the court at first instance, as the still have been taken prior to the issue of the influenced by perception or sympathy for a transcript provided details of the differences and extract and in light of what had taken place a witness. areas of conflict in the evidence. late appeal would likely have been allowed. The court also reiterated that res ipsa loquitur Sheriff Principal Turnbull also observed that This should have been addressed as a matter of was not a legal principle but a presumption while s 116(2) of the Courts Reform (Scotland) urgency. The agent could have drafted grounds of facts dependent on the Act 2014 allowed prior decisions to be open circumstances of to review in the appeal, failure to appeal a each case. If procedural determination in time might be it applied, the deemed to be an acceptance of the subsequent defender was procedure, as it was not possible to return to the Update required to point subject to criticism. Since the last article, Friel v Brown demonstrate (March article) has been reported at Appeals after extract 2020 SCLR 723, Transform Schools The general rule on this matter is that the issue (North Lanarkshire) Ltd v Balfour Beatty of an extract bars any appeal unless there Construction Ltd (March) at 2020 SCLR has been some impropriety in the issue of the 707, and Promontoria (Henrico) Ltd v Friel extract. Two recent decisions of the Sheriff (March) at 2020 SCLR 771. Appeal Court have been given on this point. In

28 / January 2021 of appeal without instructing senior counsel in relation to the issue of expenses. The to do so. The grounds could have been in former makes the award of expenses and Licensing general terms but could subsequently have in reaching that decision exercises judicial AUDREY JUNNER, PARTNER, been amended. In light of the intended discretion. That discretion includes issues MILLER SAMUEL HILL BROWN basis for the appeal, these grounds could such as modification, and the scale by which have been prepared before 16 May as expenses are to be taxed. Accordingly such Licensing lawyers are no strangers to changes that interlocutor simply started the clock issues require to be argued before the in the law in their field. Since the Licensing ticking for the purposes of an appeal. Email judge when expenses are sought. Once that (Scotland) Act 2005 was introduced there communication with the sheriff clerk’s office decision is made, the matter is remitted to the have been three additional pieces of primary might not have been answered, but the auditor when the account is lodged. legislation and over 30 regulations to absorb. appellant’s agent could have checked the The auditor has no power to reconsider However, 2020 took things to a very different position regarding the interlocutor courtesy matters on which the court has exercised place. of ICMS. Agents had a duty to obtain and discretion. Rather, the role of the auditor is to The Coronavirus (Scotland) Act 2020 was check an interlocutor for its accuracy, determine what expenses were incurred in a statute like none other, passed to ensure particularly if crucial. It was for agents to be the reasonable conduct of proceedings in the licensing board business could continue in au fait with appellate procedure rather than proper manner. In the exercise of that function the grips of a pandemic, with new timeframes rely on the assistance of sheriff clerks. These the auditor can refuse to allow expenses to protect licences. There followed a raft of matters were the responsibility of the agents. incurred as a result of fault or error on the regulations designed to suppress the virus – but I may be wrong, but I suspect practitioners part of the entitled party, and expenses the impact of their controls was, and continues reading this might identify with certain incurred in respect of part of the process for to be, catastrophic for the licensed trade. aspects which were the subject of criticism. which that party was unsuccessful. Quite apart from closure and partial As they say, “You’ve been telt!” Once the auditor has taxed the account, reopening, we have had a music ban, the 10pm an objection taken against the decision of curfew, restrictions on gaming machines, and Amendment the auditor will only succeed if the auditor mandatory collection of customers’ contact The decision of Sheriff Wade in an otherwise has misdirected himself, taken account of details. Face coverings became mandatory. unremarkable reparation claim arising from irrelevant considerations or ignored relevant There were the infamous café regulations, the a road traffic accident is worthy of comment. considerations, or misunderstood a matter Strategic Framework, and (to date) 10 versions In ER v CD [2020] PER 46 (2 September before him. The objections are further limited of regulations from the relentless level reviews. 2020) the pursuer moved to have a minute of to specific matters in the auditor’s report. With these regulations came guidance, and with amendment received in very close proximity In Moles v Cook [2020] EDIN 48 (15 guidance came confusion, local interpretations of the proof. At a pre-proof hearing a few December 2019) the issue was whether the and a legal status that was at times impossible weeks earlier, there was no suggestion of defenders could pass on to the pursuer their to pin down. Some of those regulations are now the prospect of amendment. The action had liability for the expenses of the third party the subject of legal proceedings which question been in dependence for approximately a year brought into the action by the defenders. their basis in law and their proportionality. with no hint of the matters now raised in the Sheriff McGowan recognised that as a matter While the focus for many licensing solicitors proposed amendment. of generality, the liability of an unsuccessful in 2020 was squarely on interpreting this One of the factors which Sheriff Wade pursuer is normally limited to the persons continually evolving legislative landscape and founded on in refusing the amendment convened as defenders. However, there supporting clients through the crisis, those in was that despite inquiry on the part of the were exceptions to this general principle in local authorities have also had other matters to defender as to the possibility of amendment, circumstances in which substantial justice attend to, as even in a pandemic licensing does there had been no indication that such was dictated that the pursuer bear all or a part of not stand still. to be forthcoming. It is suggested that at a the defender’s liability to a third party. Such a pre-proof hearing, if a party has a feeling circumstance would be unreasonable conduct Theatre licensing that an amendment may be forthcoming in on the part of the pursuer. As of 27 January 2021, the Theatres Act 1968, due course, the necessary inquiry should be Sheriff McGowan considered that there which provided a licensing regime for premises made. If the answer is in the negative, it may had been such conduct in that there had used for the public performance of plays, strengthen a party’s hand in opposing any been no effort to investigate issues which will be repealed. Instead, as a result of an subsequent amendment. had been raised clearly in the defenders’ amendment to the Civic Government (Scotland) In this case, the defender also sought pleadings. The matter had been allowed Act 1982 brought into force by s 74 of the Air sanction for the employment of junior to proceed to proof with these difficulties Weapons and Licensing (Scotland) Act 2015, counsel. This was granted as the defender still clearly manifest. Sheriff McGowan was a local authority can resolve under s 9 to was an anxious individual who had prepared to pronounce an interlocutor finding license theatres under its public entertainment complained to his insurers and advisers as the pursuer liable to the defenders in a sum licensing (PEL) regime. The licensing of theatres to the lack of transparency on the part of the equivalent to the latter’s liability in expenses is therefore no longer mandatory, and after the pursuer. The independence of counsel gave to the third party. Any difficulty caused by end of the month in some parts of the country additional support and management. this interlocutor could be addressed by will be an unregulated activity. the defenders providing information to the Some local authorities including Edinburgh Expenses pursuer concerning the third party’s account did take the opportunity in 2020 and resolved to As a point of reference the decision of Lord of expenses and seeking their input in any include theatres under their PEL regime. Others Tyre in CJC Media (Scotland) v Sinclair [2020] agreement reached. The pursuer would also already had plays listed as an activity within CSOH 93 (20 November 2020) is a useful have title and interest to attend any taxation their resolution, so that the requirement to hold one, as it sets out clearly the distinction of the third party’s account of expenses and a PEL automatically applies on the repeal of between the roles of the judge and auditor make any appropriate submission. the 1968 Act. Notably, many theatres also

January 2021 \ 29 Briefings

hold premises licences under the Licensing separate methods (rather than the single s 75A (Scotland) Act 2005 so will continue to be Planning route) of modifying or discharging a planning exempt for that reason. ALASTAIR McKIE obligation. Section 75A (as amended from 18 This shift in approach has not been widely PARTNER, ANDERSON November) provides that a modification or publicised, so it is not clear whether all STRATHERN LLP discharge of a planning obligation may be effected theatres were aware of the changes, which by means of either: impact their very ability to perform the work Section 37 of the Planning (Scotland) Act 2019 • an agreement in writing among the planning which is at the core of their operation. With makes some significant and helpful changes authority and all of the persons against whom the theatres sadly closed under Scotland’s to the modification and discharge of planning planning obligation is enforceable (s 75A(1)(a)); or Strategic Framework until they enter level obligations (s 75 agreements). It came into force • an application under s 75A, or following 1, the smooth transition between the two on 18 November 2020, through the Planning thereon an appeal to the Scottish ministers (ss regimes becomes a less pressing issue, but (Scotland) Act 2019 (Commencement No 5 75A(1)(b) and 75B). there will come a time that theatres are no and Saving, Transitional and Consequential longer dark. The show must go on and it must Provisions) Regulations 2020. Section 37 Modification by agreement be properly licensed. amends s 75A and s 75B of the Town and Provided all the parties (and that means the Country Planning (Scotland) Act 1997, which planning authority and all of the parties against Short term lets (STLs) address the modification and discharge of whom the planning obligation is enforceable) are in The 1982 Act is set to be expanded in other planning obligations and the appeal regime. agreement, it may be cost effective and efficient to ways this year, as it will also be the vehicle Until 18 November 2020, applications to proceed with an amending agreement or discharge used to regulate short term lets (STLs). discharge or modify a planning obligation had rather than a formal application under s 75A(1)(b). Unlike theatres, the licensing of STLs will be to be made by way of a formal application Amending agreements or discharges do not take mandatory; however the local authority will under s 75A of the 1997 Act (not dissimilar in effect until they are recorded or registered. There is have discretion to designate planning control many respects to a planning application), with no appeal available should parties fail to agree, and areas. Within those areas planning permission a requirement to notify interested parties and in such circumstances the applicant would have for a material change of use would always be provide them with an opportunity to respond to make an application to the planning authority required for a dwellinghouse to operate as and participate in the decision and any appeal. under s 75A(1)(b). a short term let; otherwise the necessity for Whilst this process was helpful in providing planning consent would be determined on a an opportunity for any party (against whom Application to modify case by case basis. the obligation is enforceable) to revisit the or discharge The Government has determined that it will terms of a planning obligation, it was clearly There are important qualifications and safeguards follow its original timetables on STLs, despite a matter of concern for planning authorities, imposed for “non-applicants” in relation to the the impact of COVID-19. The regulations as these obligations are the principal legal terms of a planning authority’s decision and an establishing the system will be in place by mechanisms that control the delivery of appeal decision of Scottish ministers. The authority, April 2021. Each local authority must have a developer contributions towards necessary and ministers, are prohibited from modifying a live system for accepting applications in place transport, educational and social infrastructure planning obligation to put or increase a burden on by 1 April 2022, all hosts must apply for a and affordable housing. A planning obligation is any non-applicant, unless they have obtained that licence by 1 April 2023 and that application registered against the title of the development person’s consent before making the determination. must be determined and licence granted by and is usually binding on all landowners in The authority, and ministers, are also enabled 1 April 2024. relation to that title. Solicitors will require (subject to the prohibition above) to propose an to check the terms of a planning obligation alternative modification that was not expressed Impact of Brexit particularly when acting for a purchaser of land in the applicant’s original application. Where they The small matter of exiting from Europe affected by a planning obligation. propose to discharge the planning obligation – has many practical impacts on the licensed Prior to 18 November 2020, a planning despite that not being sought in the application trade, critically the effect on foreign workers authority to whom a s 75A application was – or to modify it in a way that is not sought in within the industry, but in legislative terms made could only determine that the planning the application, they must obtain the applicant’s there is only one piece of relevant licensing obligation was to continue without modification, consent before making the determination. legislation. The Licensing (Amendment) (EU was to be discharged, or was to have effect Modifications or discharges do not take effect until Exit) (Scotland) Regulations 2019 amend ss subject to the modifications specified in the they are recorded or registered. 102 (sale of alcohol to a child or young person) application. Section 75B provided for a right of and 108 (delivery of alcohol by or to a child or appeal against a decision (or deemed refusal by young person) to include a UK driving licence a planning authority) to the Scottish ministers – as an acceptable form of identification. This whose decision-making is normally delegated Insolvency does not replace the reference to a European to a reporter. ANDREW FOYLE, SOLICITOR Driving Licence but is in addition to it. ADVOCATE, JOINT HEAD Licence holders can continue to accept the Two ways instead of one OF LITIGATION (SCOTLAND), SHOOSMITHS documents as before, and this minor but The amendments by s 37 of the 2019 Act have important amendment ensures that the a number of important effects, principally law keeps up with the UK’s new status. providing greater flexibility combined with While there is no definition of a pre-pack Originally this was due to come into force on a number of safeguards to protect applicants administration in the insolvency legislation, the exit day, but this has since been amended by and non-applicants (who may not participate IPA’s Statement of Insolvency Practice 16 (SIP16) virtue of the EU (Withdrawal Agreement) Act in the process but will nevertheless be defines it as “an arrangement under which the 2020 to “IP Completion Day”, which was directly affected). sale of all or part of a company’s business or 31 December 2020. As from 18 November 2020 there are two assets is negotiated with a purchaser prior to

30 / January 2021 the appointment of an administrator and the IN FOCUS administrator effects the sale immediately on, or shortly after, appointment”. About half of all pre-pack administrations ...the point is to change it involve a sale of the whole or a substantial part of the business in administration to a person Brian Dempsey’s monthly survey of legal-related consultations connected with that business. Because pre-packs are, by definition, presented to creditors as a fait accompli, the potential for abuse of the process Corporate transparency greater public protection and reduce the has long been a concern to government. The UK Department for Business, Energy & level of poor workmanship. See consult. SIP16 already exists. It’s aimed at ensuring Industrial Strategy (BEIS) and Companies gov.scot/energy-and-climate-change- insolvency practitioners don’t find themselves House seek views on three topics related to directorate/a-consultation-on-the-regulation- subject to a conflict of interest. Nevertheless, the their corporate transparency and register of-electricians/ optics for creditors often give the appearance reform agenda. Separate consultations on Respond by 12 February via the respective (warranted or not) of debtor companies escaping powers of the registrar, implementing the web pages. their liabilities and carrying on regardless. It was ban on corporate directors, and improving against this background that the Graham review the quality and value of financial information National Planning Framework was undertaken in 2014, resulting in the Small on the companies register are on gov.uk/ The Government has set out its thinking on Business, Enterprise and Employment Act 2015. government/consultations/ (launch date 9 the issues in preparing Scotland’s fourth That Act gave powers to the Secretary of State to December 2020). National Planning Framework (NPF4), and make provision (including for full prohibition) for Respond by 3 February via the respective seeks comments on the four key outcomes the sale of a business to a connected person. That web pages. of net zero emissions, resilient communities, power was then effectively re-enacted as part a “wellbeing economy”, and “better, greener of the Corporate Insolvency and Governance Act places”. See consult.gov.scot/planning- 2020. To date, it hasn’t been used. However, the Police complaints and architecture/national-planning-framework- Government announced on 8 October its intention misconduct position-statement/ to apply such powers and has since published Holyrood’s Justice Subcommittee on Policing Respond by 19 February via the above web draft regulations. seeks views on the recommendations in Dame Elish Angiolini’s final report on page. Call in the evaluator the Independent Review of Complaints The draft regulations are to apply only to Handling, Investigations and Misconduct Restrictive covenants administrations commencing on or after the Issues in Relation to Policing. See BEIS seeks views on “options to reform date that the regulations come into force. parliament.scot/parliamentarybusiness/ post-termination non-compete clauses in They apply only to a “substantial disposal” CurrentCommittees/116658.aspx contracts of employment”. Possibilities include by an administrator to a “connected person” Respond by 5 February via the above web making clauses enforceable only when the (as defined in para 60A of sched B1 to the page. employer provides compensation during the Insolvency Act 1986). A “substantial disposal” term of the clause, and making such clauses is a “disposal, hiring out or sale to one or more Conduct on public bodies unenforceable. See www.gov.uk/government/ connected persons during the period of 8 Scottish ministers welcome views on their consultations/measures-to-reform-post- weeks, beginning with the day on which the “major rewrite” of the Councillors’ Code of termination-non-compete-clauses-in- company enters administration”. It must be Conduct (see consult.gov.scot/housing- contracts-of-employment in relation to the whole or a substantial part and-social-justice/the-councillors-code-of- Respond by 26 February via the above web of the company’s business or assets. What is conduct/), and separately on their Model Code page. considered “a substantial part” is a matter for of Conduct for members of devolved public the administrator’s opinion. Importantly, the bodies (see consult.gov.scot/public-bodies- definition includes disposals effected in a series Animal welfare unit/ethical-standards-in-public-life/). of transactions. The Government seeks views on Respond by 8 February via the respective recommendations by the Farm Animal Welfare Where the regulations apply, the administrator web pages. Committee in its “Opinion on the Welfare has two routes to effect a pre-pack administration. of Animals during Transport” document. The first is to obtain a decision of the creditors See consult.gov.scot/agriculture-and-rural- of the company under para 51 or 52 of sched B1. Regulating electricians economy/farm-animal-welfare-committee- Given that many pre-packs are driven by a desire Anyone can call themselves an electrician, opinion-on-the-welfa/ for secrecy and to prevent market speculation, it without the need for any qualifications or Respond by 26 February via the above web is unlikely this option will be widely adopted. The competency. The Government seeks views page. second route is for the administrator to obtain a on whether regulation is required to give report from a person known as the “evaluator”. The regulations contain a number of provisions regarding who can be an evaluator. Most importantly, the evaluator must be independent consideration or price provided for the relevant Seen to be independent? of the administrator and of the company. Their property and the grounds for the disposal The regulations suggest that it is the connected role is to examine the proposed transaction and to a connected person are reasonable in the person themselves who must obtain and to give either a “case made” opinion or a “case not circumstances. The latter is where the evaluator is provide the administrator with the report. made” opinion. The former is an opinion that the not so satisfied. Subsequently, the administrator must

January 2021 \ 31 Briefings

consider the report and make a decision on whether to proceed. Notably, the regulations do not prevent the administrator from proceeding with the transaction, even where the opinion is a “case not made” report. However, the administrator must, if they proceed with the disposal, provide a copy to every creditor (other than opted out creditors) of whose claim they are aware. If the transaction proceeded in the face of a “case not made” opinion, the administrators must give their reasons for proceeding. Copies of the report(s) must also be filed with Companies House (redacted for commercially sensitive information if required), together with the administrator’s statement of proposals. CGT rates to pay CGT in any given year. However, this This independent scrutiny of the transaction The OTS report showed that, in the 2017-18 tax again assumes that taxpayer behaviour would may serve to improve creditor confidence in the year, £8.3 billion of CGT was paid by 265,000 not change, when it is likely that individuals process of administration, particularly when taken UK taxpayers, compared with £180 billion of would simply spread their gains across a alongside the Government’s stated aim of working income tax paid by 31.2 million taxpayers. This greater number of years in order to stay below with regulated professional bodies to strengthen highlights the unsurprising fact that CGT is paid the threshold. SIP16. However, there is a risk that creditors’ by relatively few taxpayers when compared suspicions around the fairness of the process with income tax, and that the average individual Business reliefs might shift to suspicion about the independence CGT tax liability is much higher than the average The most popular CGT relief is business asset of the evaluator over time, especially if the income tax liability. disposal relief (formerly entrepreneurs’ relief) same evaluator is seen in multiple insolvencies. These statistics lead to the OTS’s first (BADR), which is targeted at company owner Consequently, a truly independent evaluator is recommendation, that the Government should managers. This relief reduces the CGT payable key to the success of the proposal. consider aligning CGT rates with income tax on the disposal of business assets (including rates. This would prohibit often already wealthy shares) to 10%. The OTS argued that the individuals from taking advantage of methods of objective of BADR is to operate as an alternative converting income into capital to benefit from a to a pension when a business owner retires. lower tax rate, and would also simplify the tax If this is the case, the OTS recommended that Tax system. Aligning rates could, without a change the relief is amended to increase the minimum CHRISTINE YUILL, in taxpayer behaviour, raise an additional shareholding and holding period and to PARTNER, AND ZITA £14 billion in CGT each year. reintroduce a minimum age requirement. DEMPSEY, SOLICITOR, However, if the rates were aligned, there However, this is not the only objective of PINSENT MASONS LLP would likely be a change in taxpayer behaviour. BADR. The relief was also originally introduced In July 2020, the Chancellor asked the Office of The OTS itself recognised this; in particular the to encourage investment, reinvestment and Tax Simplification (OTS) to carry out a review of potential for taxpayers instead to hold their growth in UK businesses, which it cannot do if capital gains tax (CGT), “to identify opportunities assets in companies, to benefit from what would there is, for example, a minimum 10 year holding relating to administrative and technical issues be a lower rate of corporation tax. It is therefore period for the asset. as well as areas where the present rules can unlikely that an alignment in rates would The OTS’s first report highlights some clear distort behaviour or do not meet their policy raise anywhere near the estimated £14 billion. inconsistencies in the CGT regime, particularly intent”. The OTS published its first report on Additionally, lower rates of CGT were originally in comparison to the income tax regime. 11 November 2020 and made recommendations introduced to encourage investment and reflect However, not all the recommendations set out covering four areas: rates and boundaries; the the fact that investments tend to carry more risk in the report are likely to fix the issues they are annual exempt amount; reliefs; and capital than income earned through employment, and intended to address. It remains to be seen which transfers. This briefing will consider the first so aligning rates may not be appropriate from a recommendations the Government adopts, and three areas. The second report will be published policy point of view. all eyes are on the next Budget for an indication early in 2021 and will be more technical and of the approach that will be taken. administrative in nature. Annual exempt amount The Government clearly needs a way of The current CGT annual exempt amount is reclaiming the estimated £394 billion it will £12,300, and the OTS highlighted that a high borrow this financial year to fight the COVID-19 proportion of taxpayers are reporting gains crisis, and the OTS sets out how some of that sit just below this threshold, arguing that Immigration its recommendations could raise additional individuals may be managing their gains so as DARREN COX, revenue. However, it is not certain that the to fall within the annual exempt amount. The SOLICITOR, recommendations will raise the amounts OTS recommended that, if the purpose of the LATTA & CO estimated. There is also some concern that annual exempt amount is simply administrative the recommendations are inappropriate from a (to reduce the number of people who are The COVID-19 pandemic and the consequent policy point of view, although it will be for the required to submit a CGT return), then it should lockdown restrictions have resulted in a Government to decide what changes it takes be lowered to between £2,000 and £4,000. This substantial shift across the legal profession, forward. would double the number of taxpayers required both in the way that criminal and civil lawyers

32 / January 2021 conduct their day-to-day operations, and in focused on complex and novel issues as make a required disclosure in terms of s 330 the operation of the courts and tribunals. For justification for an oral hearing, by consequence of the Proceeds of Crime Act 2002 and failed immigration and asylum practitioners, there failing to consider other relevant and important to advise the purchaser’s Scottish solicitor has been a marked increase of appeals, mainly factors which might justify same. regarding the contact with their client or make those in the Upper Tribunal (“UT”), which deals enquiries of the purchaser’s Scottish solicitor with appeals from the First-tier Tribunal (“FTT”), Do it all again? regarding the source of their client’s deposit. being determined “on the papers” (on the basis So, what next? The ramifications of the The Tribunal censured the respondent and of written submissions and without an oral judgment are already beginning to be seen by fined him £1,000. hearing). practitioners. The consequence of Fordham The transaction involved the sale of the The basis for the increasing determination of J’s decision and the resultant order was property of the client, a distressed borrower, appeals on the papers came from the President that the UT must bring to the attention of all and the purchase by her of an interest in of the UT, Mr Justice Lane, in his Presidential appellants, whose UT substantive appeals (i.e. that property. It is never acceptable to pay Guidance Note No 1 2020. Part of that guidance not permission to appeal applications which a client’s money to a third party without the note essentially laid out the circumstances in are routinely determined on the papers) were written instruction of the client. Clients and which decisions on some appeals might be decided in favour of the since 23 the public must have confidence that solicitors made without an oral hearing being required. March 2020, Fordham J’s judgment, order and will deal properly with their money. The For any practitioners working in the immigration a statement: “if you have not taken legal advice importance of transparency when handling and asylum sphere, it has become very much on your position, you are strongly advised to do clients’ money has been fundamental for commonplace throughout the pandemic for this so now”. many years. Paying off a purchaser’s loan to be the course adopted by the UT. The Joint Furthermore, the part of the guidance note (particularly when acting for the seller) is very Council for the Welfare of Immigrants (“JCWI”) which was declared unlawful by Fordham J has unusual and should have raised suspicion. recently sought judicial review of the relevant now been withdrawn by the UT and a revised Any payments to the purchaser ought to have part of the guidance note, namely paras 9-17, on guidance note issued. It is clear that the number been paid to her solicitor. The client’s money the basis that it created an “overall paper norm” of affected appellants is potentially significant, was sent out without express authority of or, in other words, a presumption in favour of given the guidance note was being applied in the client. The respondent took no steps to hearings being determined on the papers. practice for a period of around eight months. verify the purchaser’s mandate. This created JCWI has now set up a helpline to assist a risk for the client. There was a need for an Overriding objective those who have potentially been affected. informed instruction from her. This conduct Fordham J heard the case in the England & The best method for challenging decisions was a serious and reprehensible departure Wales High Court, the resultant judgment of reached on the basis of the unlawful guidance from the standards of competent and reputable which is JCWI v President of the UT (IAC) [2020] note remains to be seen. However, rule 43 of solicitors and therefore constituted professional EWHC 3103 (Admin). The issue in the case was a the Tribunal Procedure (Upper Tribunal Rules) misconduct. relatively narrow one, given that counsel for the 2008, para (2)(d) of which empowers the UT The respondent failed to make a required President accepted that if it was held that the to set aside or remake a decision where “there disclosure in terms of s 330. He failed to advise guidance note created an overall paper norm, has been some other procedural irregularity the purchaser’s agent about his contact with it therefore followed that the guidance was in the proceedings”, would appear to apply. An the purchaser and did not make enquiries unlawful. alternative may be to appeal the decision to the with them about the source of their client’s The learned judge determined this issue in Inner House (or the Court of Appeal in England deposit. The property investment club provided the affirmative. Having regard to basic common & Wales). a mandate from the purchaser which bore law requirements, he held that the guidance What is certain is that the significant backlog to be signed by her. The respondent took no note was unlawful as it directed judges to of cases which the UT had sought to reduce steps to verify this document. He was aware proceed on the basis that appeals should is likely to grow further, with many of these of apparent third party funding over and above normally be decided on the papers rather than cases being reopened and oral hearings that provided by the purchaser’s lender. He at remote hearings (something else which has having to take place. ought in the circumstances to have disclosed become more common in the immigration and this arrangement to the purchaser’s solicitors asylum sphere and looks to be here to stay and to SOCA. It was unclear whether the for the foreseeable future). Fordham J held purchaser’s lending bank was aware of the that this was because such basic additional third party funding and source of requirements “inform the overriding objective Scottish Solicitors’ purchase deposit. It seems likely that they of just and fair disposal, with which judges are Discipline Tribunal were not. The respondent did not make duty-bound to comply”. the required disclosures to the purchaser’s On the point of fairness, Fordham J’s WWW.SSDT.ORG.UK solicitors or SOCA, which was a significant judgment was particularly scathing insofar as error of judgment. Making these disclosures it relates to the following part of the guidance Eric Robert Lumsden is essential in the prevention of money note: “The fact that the outcome of the appeal A complaint was made by the Council of the laundering. It is essential that the public can is of importance to a party (or another person) Law Society of Scotland against Eric Robert have confidence that the profession will adhere will not, without more, constitute a reason Lumsden, Sneddon Morrison, Whitburn. to anti-money laundering provisions which to convene a hearing to decide the relevant The Tribunal found the respondent guilty of exist to protect society from criminal acts. The questions”. professional misconduct in respect that (a) he Tribunal considered the failure to make the Fordham J considered this advice from failed to advise his client he had been requested disclosures to be a serious and reprehensible President Lane to be both erroneous in law and to give and had given undertakings to make two departure from the standards of competent and capable of encouraging unlawful acts. It was payments from her ledger totalling more than reputable solicitors and therefore constituting considered that the guidance note unlawfully £70,000 to two third parties; and (b) he failed to professional misconduct.

January 2021 \ 33 Briefings Scotland’s inner cities: is the landscape changing?

What do reducing requirements for commercial space post-COVID mean for property use in our city centres? Whether this is successfully managed will depend on local planning policy as well as the legal framework

of the inner city landscape. With Scotland Property/Planning declaring a climate emergency (April 2019), FRASER MITCHELL, PARTNER, hosting COP26, and announcing a target to PLANNING, AT SHOOSMITHS be carbon net zero by 2045, there has never IN SCOTLAND been a greater focus on the environment and determined in accordance with the policies of identifying sustainable ways to live, work, the local development plan, unless material Step back a year, and who could have foreseen and travel. Notably, the UK Government has considerations indicate otherwise. Notably, how COVID-19 would impact on society and the signalled its commitment to ban all new petrol any proposal is more likely to secure planning economy, including how and where people live and diesel cars in the UK by 2030. With some approval if it has policy support. and work? Scotland’s city and town centres, local authorities already taking steps to create a Interestingly, while the current planning which continue to see significant commercial more pedestrian and cycle friendly environment, framework attracts criticism for being slow and and residential investment in developments there are already signs of a shift in terms of expensive, this same framework has appealed like Haymarket and St James in Edinburgh and how society will function. to institutional and overseas investors for over Osborne+Co’s office development on Argyle Moreover, city and town centres also a decade. These parties have benefited from Street in Glasgow, have not been immune from continue to deal with the changing nature of rental returns on their investment in major office this shift. retail. The rise in online shopping, fuelled in part infrastructure and, increasingly, in build to rent Consequently, it is prudent to consider by restrictions on movement imposed during (BTR) developments in Scotland’s cities. the extent to which the pandemic, and by the pandemic, has adversely impacted the high Within this context, investors and landlords association, demand for homeworking, will street and notable traditional high street names. will have long lease agreements in place with impact temporarily or permanently on how In this complex picture of policy, planning, tenants that may include hotels or a suite of developers, investors, landlords and planning legal, economic and social change, we must also companies within one office block. There will authorities view the inner city landscape. consider the stark fact that just as Government also be break clauses, though it is beyond seeks to alleviate a chronic shortage of housing, the scope of this piece to consider the legal Agents of change there are also constraints on supply of land. ramifications for investors and landlords if There is much to consider in terms of how These too are factors in shifting the dial in how financially pressed tenants seek to terminate Scotland’s planning system could react to town and city centres are planned. or renegotiate a lease. However, if in response the current (December 2020) and predicted Undoubtedly, these factors will all greatly to a sudden downturn in demand for their decrease in inner city office and retail footfall. influence change within our inner city office space, a developer or investor wishes According to the Fraser of Allander Institute landscapes. However, to understand why they to repurpose or effect a change of use of their (Scottish Business Monitor), which surveyed present both challenges and opportunities in office development, it is important to consider 500 companies, over 25% expect to reduce a planning context, it is important to recall the the planning and policy ramifications. office space permanently. It’s a sobering traditional process by which major commercial Changing a building’s use from a retail or statistic, and one that may also reflect an and residential space in our cities is created. office space to a residential model presents anticipated rise in unemployment among legal and planning issues, not least in requiring Scotland’s traditionally office-based professions. The current planning landscape the applicant to gain planning permission. This It also underlines that some form of home Central to any development progressing is inevitably incurs additional cost, possible delay, based working is here to stay. the legislation that applies in Scotland. and no guarantee that approval will be secured. The pandemic aside, other agents of change Planning applications are subject to the However, there is scope for optimism. Planning will continue to influence significantly the shape “s 25 assessment”, meaning they should be authorities are aware of the challenges facing

34 / January 2021 vaccine will be a gamechanger for society and the economy, though I suspect we may yet see further casualties in retail, and businesses further rationalising their office estate. In 2031, we may look back and recognise that the COVID pandemic simply served to accelerate the demand for a carbon friendly, mixed use model of office and residential development, with greater leisure and education space and a reduced retail offering. In the months and years to come, I suspect landlords will increasingly consider whether vacant office buildings are better used as private rented developments (akin to BTR) for student accommodation, or even hotel use. For example, in inner city locations like Princes Street and George Street in Edinburgh, where the upper floors of street-front units are currently lying empty or used for storage, we may see applications to repurpose. Notably, any such successful developments would likely tip the value of these buildings on their head. For the principal value may be in residential (rented) use, with ground floor retail or leisure contributing little to the value proposition. To support any such change of use, we will likely see planning authorities explore new policies designed to breathe life into ailing city town and city centres, and some are proving developments under permitted development and town centres. Developers may even seek more receptive to providing their policy support rights, some residential flats as small as just 90 a legislative framework similar to that in place to permit alternative use. square feet have been created in former office in England. For example, Glasgow City Council’s City buildings! The same system has enabled flats Undoubtedly, significant challenges lie ahead Centre Living Strategy seeks to double the to be created with only single aspect or internal to transform Scotland’s inner city landscapes city centre population by 2035. This signals a windows, and in one notable case saw flats successfully, not least in deciding the very policy aspiration, and arguably a green light sharing the same corridor within the remaining purpose of the high street. It is an emotive for developers to explore alternative uses for office development. To be fair, the English subject, particularly in a location like Edinburgh potentially redundant buildings. An enlightened system has provided some good quality housing where the retail element is a key feature of outlook on policy will undoubtedly provide through its process. However, the absence of the historic fabric of the city. That said, I sense developers and investors with increased rigorous scrutiny of proposals has also led to a genuine will among planning authorities to confidence that the planning authorities have a instances of poor quality development. overcome the considerable challenges, and vision for their inner city areas that looks beyond ultimately to ensure that relevant sustainable the limits of traditional retail and office uses. development is at the forefront of future “In England ... some thinking. There is a precedent. Glasgow and its Differences in approach residential flats riverside are already very different to its heavy In the above context, Scotland’s position industry dominated past. differs from England. South of the border, as small as just The key question is the extent to which the the planning system provides for permitted 90 square feet have and planning authorities development rights that enable an existing respond to calls for further changes in how office development to convert to a residential been created in former our towns and cities are structured, and how development without the need to seek planning office buildings!” investors react. The demand for space in inner permission. Fundamentally, this offers investors city areas will not disappear, but the purpose and developers a streamlined and flexible of that space has changed, and will continue way in which building types for which there is Consequently, I envisage little appetite for to change. currently no market can be repurposed to meet the Scottish Government to adopt a similar Unquestionably, the current pandemic has a market demand. approach. For at the very heart of the Scottish accelerated changes in how citizens live in and Additionally, in England, developments that planning system is the central tenet of place- utilise their towns and cities, and in turn the come forward under permitted development making, whereby planning dictates that the actions of the working population and visitors rights are not required to comply with space appropriate development must be built in the will influence investor, developer and landlord standards or to provide affordable housing. right place. decisions. We must now ensure that the legal These factors may seem an attractive framework and planning policy are in place to proposition for Scotland’s planning system. 2021 and beyond enable the right opportunities to come forward, However, there is a cost. In England, as It is January 2021, and in the year ahead I redefining the shape of our urban landscape for space standards do not apply to residential expect (and hope) the success of a COVID the next 50 years.

January 2021 \ 35 Briefings Four to the fore: ILC’s new faces

The In-house Lawyers’ Committee’s four new members introduce themselves, and tell of their aims for the ILC and the challenges of the coming year

I first qualified, I wasn’t sure what I wanted to We use our legal knowledge to enhance the In-house do. I joined a small in-house team in a software organisation and so we must evolve in our roles company, and it opened my eyes to the role of to meet any changing business needs. IN-HOUSE LAWYERS’ COMMITTEE the in-house lawyer. AG: I believe that the role of an in-house lawyer is to have a “can do” approach which Brief introductions – tell us about your You all work for very different provides the support needed to deliver the career path to date; how have you got to organisations, doing very different roles. service within the governance arrangements where you are now? What are some of the common themes of the organisation. The skillset for an in- Hope Craig: I trained in private practice and that bring such a diverse group together? house lawyer is the same, regardless of the I moved in-house not long after I qualified. NC: I think there are lots of common themes employer – an understanding of the needs of I have been working at Heriot-Watt University which unite us. For example, becoming truly the organisation, an ability to find solutions as since 2017. customer focused and the need to develop well as provide legal advice, and lots of tenacity Lynette Purves: After enjoying a varied the skills and behaviours which are necessary to see things through. I’m pleased that in recent traineeship with a full service commercial to become a successful in-house lawyer. The years we’ve seen a rise in the profile of in-house law firm, I worked as a commercial property challenges and opportunities facing the legal lawyers and they are getting the recognition lawyer in private practice for six happy years profession apply as much to in-house as to they rightly deserve in the role they play. The until it was time for a new challenge. Having private practice. For example, new legal service ILC has played an important part in this. experienced and thoroughly enjoyed in-house providers entering the market; the potential for life through a couple of past secondments, technology to disrupt the traditional role of the Why did you join the In-house Lawyers’ my sights were set on moving in-house. As a lawyer; concerns about wellbeing, diversity Committee? What do you hope to bring to renewable energy and climate enthusiast at and inclusion; and the increasing pressure from the role of committee member and what do heart, I was delighted to land my current role clients to do “more for less”. you hope to get out of it? as UK legal counsel for European renewable HC: Despite in-house lawyers working in a LP: “Alone we can do so little; together we can energy company, ERG. wide variety of sectors, our roles all involve do so much,” as Helen Keller so rightly put it. Anne Garness: I trained and initially worked promoting the needs and strategies of the As Scotland’s community of in-house lawyers in private practice. In 2001, I decided to make the organisations in which we work, whilst also continues to grow, I believe that our ILC has an move to the public sector, and spent 18 years at adhering to the professional standards and important role to play in creating and facilitating Angus Council where I was DPO and managed ethical obligations that lawyers must abide by. opportunities for connecting and collaborating the property, contracts and information An in-house legal team is just one piece of an with each other. I am therefore particularly governance team. A year ago I felt it was time organisation’s jigsaw; an in-house lawyer must excited to be working on launching our new for a change and took a position in the Legal be able to work collaboratively with colleagues online networking platform for sole in-house & Corporate Governance team at the Scottish from various departments to deliver results. counsel and small teams, as well as working Social Services Council, where I provide advice on creating new networking, mentoring and on information governance, contracts and the personal development opportunities across our legislative framework underpinning the work of whole in-house community. the SSSC. HC: The ILC is doing a lot of fantastic work, Neil Campbell: I would describe my career “I believe that our ILC including the creation of the online community path as long and winding but incredibly platform this coming year. I am keen to raise rewarding! I am currently a managing legal has an important role to awareness of the value that in-house lawyers counsel in the Outsourcing, Technology & IP play in creating and bring not only to the organisations in which they team at NatWest. Prior to NatWest, I spent six work, but also to the wider legal community. I years in Sydney, working at one of Australia’s facilitating opportunities also want to use this opportunity to highlight largest law firms before moving to an in-house for connecting and the interesting and varied work of the various role with an Australian energy company. I legal teams within the Scottish higher and studied law at Dundee University and my collaborating with further education sector. traineeship was with a sole partner firm. When each other.” AG: I wanted something positive to remember

36 / January 2021 Hope Craig, Lynette Purves, Anne Garness, and Neil Campbell

about 2020! I noticed that the ILC did not have them dramatic changes and unique challenges. please feel free to drop me a line (or any other anyone representing a regulator and thought This has resulted in in-house lawyers being members of the ILC) – we’d be more than happy I could bring this different perspective to the asked to provide advice on a large volume to help you. committee. Regulators play such an important of unprecedented issues, and 2021 looks set Secondments in-house are also a great part in protecting the public and I thought it to be no quieter! Getting to grips with new opportunity to “try before you buy”. Even if you would be good to bring this perspective to the legislation/Government guidelines is only decide to stay in private practice, you’ll no doubt Law Society of Scotland, a fellow regulator of part of the story. It is more important than return with increased commercial astuteness course. The SSSC was very supportive of my ever that in-house lawyers are flexible and and that certain je ne sais quoi that can only be application, recognising that this professional continue to develop their skills to provide their gained from working in-house. development activity would benefit it as well organisations with the support that they need. And if you’re interested in working in the as myself. I’m looking forward to working with AG: In my view, in-house lawyers have been renewable energy sector? I’d say that there has fellow committee members from different facing some of the same challenges as those never been a better time. With the UK hosting sectors to discuss issues affecting the in-house in private practice – trying to maintain the right the upcoming COP26, and with an increasing sector, promote engagement with the in-house work-life balance especially when working number of renewable energy businesses basing lawyers’ community and hopefully learn some from home. In the public sector there is the themselves here in Scotland, it really is an new skills along the way. continual pressure of diminishing resources exciting time to be working in this growing and NC: I believe it is important to give something and increased demand. That is only going to innovative sector. back to the wider community. I have a lot of become more challenging when the impact of HC: In-house lawyer roles come in all sorts experience as a lawyer, but more than that I am the cost of the pandemic resource is felt. of shapes and sizes. Think about what you want enthusiastic, proactive and enjoy collaborating I fear the impact of the pandemic will continue to get out of your job and take it from there. Do with others! I am a member of the O Shaped well beyond 2021 for both employers and not apply for a post simply because the vacancy Lawyer working group, a group of UK in-house our members. It is good to see the efforts of has come up – do your research and assess it lawyers who are working with universities, the Society to support its members with the against what you are looking for in a job. If you law firms and in-house teams to encourage challenges, and in particular those struggling are not sure whether working in-house is for the learning and development of more human with mental health issues. Looking ahead, I’ve you and you would like to find out more, keep centric skills (like empathy, collaboration, no doubt that despite the challenges from an eye on the in-house lawyers’ blog on the openness, trust, communication) by law COVID, Brexit and the economic outlook, in- Society’s website. students and practising lawyers alike: see house lawyers will continue to strive to provide AG: I would encourage anyone to consider Journal, September 2020, 36. One thing an excellent service, meeting the needs of their a career in-house. Whilst the financial rewards I would like to do is raise awareness of the employer and its staff. may not be the same as private practice, there O Shaped Lawyer Programme within the wider are other worthwhile benefits. When working in-house community in Scotland. What advice would you give anyone in-house you are part of a team, working looking to start a career in your sector or with colleagues from different parts of the 2020 has been quite a year! What do you in-house more generally? organisation, supporting them and contributing see as the biggest challenges ahead for LP: If you’re thinking about moving in-house, to projects from their initiation to completion. in-house lawyers (or in your sector) in why not reach out for an informal chat with NC: Go for it! This is an exciting time to be an 2021 and after the pandemic? those who have “been there, done that”? in-house lawyer. If you have any questions or HC: The UK’s exit from the European Union and Hear their stories and ask them your burning concerns, reach out to me or any member the COVID pandemic have both brought with questions. If you don’t know who to speak to, of the ILC.

January 2021 \ 37 In practice Legal aid package must be met in full: Society

he Scottish Government’s £20 million. He also promised reform of fees for regulations are independent of and do not legal aid deal for solicitors is criminal summary and solemn business. include the first 5% uplift. They are also intended separate from new regulations In an initial reaction, Society President to be cost neutral, a matter the Society will be making certain changes to the Amanda Millar described the package as seeking to ensure in further urgent discussions T fee structure for criminal a “positive response” and “a start towards this month ahead of the planned laying of the work, the Government has addressing three decades of underinvestment”, regulations before the Parliament on 1 February. assured the Law Society of Scotland. sentiments that were shared by many legal The Society has stressed the need for it to be Just before Christmas, Justice Secretary aid lawyers. However draft criminal fees “absolutely clear that the profession will end up Humza Yousaf announced a package comprising regulations released to the profession two days 10% better off at the end of the changes”. a 10% uplift in fees, split between the next two later appeared to claw back part of what had On the resilience fund, the Society is seeking financial years, and a £9 million “resilience fund” been granted, by extending the fixed fee and to ensure that it is up and running as soon as to support solicitors and law centres who have abolishing or reducing various other payments, possible and that most support goes to those lost legal aid income due to COVID-19. Together prompting a seven page letter to ministers from firms hit hardest financially by COVID-19, many with the previously announced enhanced fee the Glasgow Bar Association, published on its of which have been unable to access other for early guilty pleas in solemn cases, and the website glasgowbarassociation.co.uk. support packages. It has further made clear that payment of half the cost of up to 40 trainees in The Society has since been assured, and it expects the full amount promised to be paid legal aid firms, the total value would be up to has advised members concerned, that these over, whatever method of allocation is adopted.

Complaints proposals out for views RoS looks to make The Scottish Government is consulting on how to take forward shorter term reforms to legal complaints, ahead of possible digital permanent further reaching reforms to professional regulation as proposed in the Roberton review. Registers of Scotland has opened a consultation on making permanent With the present statutory process criticised on all sides as the digital solutions introduced in response to the COVID-19 pandemic. cumbersome and inflexible, the paper sets out three “packages”: The Keeper, Jennifer Henderson, says the view has been expressed • introducing a category of hybrid issue complaints – dealing very strongly by Registers’ customers and stakeholders, including the with complaints raising both service and conduct issues as Society, that they would like to continue dealing digitally in the future, one complaint; following the new processes introduced in response to the closure of • changes to the process of assessment, investigation, the paper based system during the COVID-19 lockdown. reporting, determination and conclusion; Registers’ experience is that submission of applications and • changes to allow losses to a complainer that cannot be supporting deeds through the digital portal has improved speed and recovered from the solicitor to be met under the Master Policy. efficiency, and reduced risk in preparing and submitting documents. In an initial response, Craig Cathcart, convener of the However if digital submissions are to be placed on a permanent Regulatory Committee, said the Society had worked closely footing, and become the default method, permanent legislation will be with the Scottish Government and SLCC over the last few years required. Recognising the close partnership working that marked the to identify a package to try and make the system quicker and adoption of the present service, Registers wants to hear users’ views more efficient. before taking the next step. He commented: “While they do not solve all the problems The paper proposes that digital submission should be the default in the system, these changes offer a significant and positive method in future, subject to necessary exceptions. It also covers step forward ahead of any primary legislation in the next the status and format of extracts, registration of judgments (digital term of the Scottish Parliament. Our hope is that, following submission should again be the default), and registration in the Books this consultation, the Scottish Government will move forward of Council and Session (where paper registration should continue to be quickly so these changes can be delivered for the rapid benefit required, except that the register should be opened to true electronic of the public and the profession.” documents, executed by qualified electronic signature).

The consultation is at The consultation is at ros.gov.uk/about/publications/consultations-and- consult.gov.scot/justice/amendments-to-legal-complaints. surveys/2020/digital-submissions-2020. The deadline for submissions The deadline for responses is 20 February 2021. is 1 February 2021.

38 / January 2021 Notifications PUBLIC POLICY HIGHLIGHTS ENTRANCE CERTIFICATES ISSUED DURING NOVEMBER/ DECEMBER 2020 ALLAN, Emily Linda The Society’s policy committees submitted a stage 1 briefing on action; and accessibility and BANNIGAN, Chloe analyse and respond to proposed the Hate Crime and Public Order support for adults with incapacity. BANSAL, Veer changes in the law. Key areas (Scotland) Bill. Among other BARNES, Danielle BRITTON, Douglas Mitchell from December are highlighted comments, it welcomed the new National security CAMPBELL, Sarah Margaret below. For more information see working group on misogynistic The National Security and CASIDAY, Augustine Michael www.lawscot.org.uk/research- harassment, though the timing Investment Bill, which provides Cortney and-policy/ meant that none of the group’s for a new regime for Government COOPER, Carli Ann findings could be included in the scrutiny of, and intervention in, CORRIGAN, Mairead Clare CUNNINGHAM, Stuart SEPA enforcement action bill. It strongly opposed the matter investments for the purposes DONACHIE, Josey Patricia The Environmental Law of misogyny being dealt with by of protecting national security, GALLACHER, Dean John Committee responded to the affirmative regulations. was introduced on 11 November GLYNN, Findlay James McLeod Scottish Environment Protection 2020. The Banking, Company & HADDEN, Nicola Margaret Dorina Agency’s consultation on the Domestic abuse Insolvency Law and Competition HOFFORD, Oliver Cameron revised guidance on the use of The Criminal Law Committee Law Committees submitted Paterson LEE, Niamh Orla enforcement action. also submitted a stage 1 briefing written evidence ahead of its LI, Ningzhou Lemon The response broadly on the Domestic Abuse and committee stage, welcoming McILWHAM, Sarah Frances supported SEPA’s proposals Protection (Scotland) Bill, which the overarching objective McKENDRICK, Julie Kathryn on enforcement and the use creates new short term measures of safeguarding the UK’s McNALLY, Sophie Marie of variable monetary penalties for the courts and police to infrastructure in the context of a MITCHELL, Dylan Lee NELSON, Paul Joseph (VMPs). On VMPs, the detailed provide protection to a person modern understanding of threats RODGER, Alexandra Louise nature of the proposed approach at risk of abuse. to national security. SHAH, Rohini Premal while retaining simplicity was It reaffirmed the committee’s However, they highlighted a WEST, Rebecca Dorothy commended. Clarity around view that “domestic abuse is number of concerns regarding YIU, Victoria Ann Yi Tuck the use of SEPA’s enforcement a situation that must not be the practical application of the APPLICATIONS FOR powers and when matters will tolerated in our law or society”, regime, including its potential ADMISSION be reported for prosecution is but emphasised the need for width. Although the intention is NOVEMBER/DECEMBER 2020 important. Consistency in the gender-neutral drafting and raised to narrow the issues through ANWAR, Mohammed Awais BRENNEN, Laura Greta VMP regime will be a key specific concerns including the secondary legislation, further BROWN, Mhairi Margaret concern for operators. interaction of the new protection detail should be provided in the CAPALDI, Francesca Marianna It further considered the orders and protection notices with bill in the interests of ensuring CASTER, Jack Stanley approach to calculating existing remedies. appropriate scrutiny in Parliament. CLARK, Louise Catherine weightings in the VMP regime CLARK, Rebecca CONSIDINE, Daniel John to be appropriate, but noted that Redress for child abuse UK-EU agreement DEANS, Jonathan Ian as a new regime it would be The Charity Law, Mental Health A Trade and Cooperation DHESI, Anita Kaur appropriate to monitor this and & Disability and Civil Justice Agreement was finally reached DONALDSON, Jennifer Ross review in two to three years’ time. Committees contributed to a between the UK and EU on 24 KING, Scott Alexander stage 1 briefing on the Redress for December; on 30 December MPs KINGSTON, Cecily Clare KWOK, Eva Yee Wah European data protection Survivors (Historical Child Abuse voted in favour of the deal by MacFARLANE, Lorna Jane In a joint response with the Law in Care) (Scotland) Bill. 521 to 73. The deal was quickly MALONE, Louise Society of England & Wales, the Comments included the need signed into law by the EU (Future MERCHANT, Kathryn Grace Ann Privacy Committee responded for more detail around what a Relationship) Act 2020, which MURPHY, Judith Anne Heidi to the European Data Protection “fair and meaningful” contribution passed all stages in both Houses NISA, Hajira Noreen Board’s call for comments on to the redress scheme would be, and was given Royal Assent that O’NEIL, Anna SIDHU, Gurnish Kaur its recommendations (01/2020) and the statement of principles; day, in order to take effect from SMITH, Lynsey on measures that supplement where alternative approaches 11pm on 31 December. SMITH, Simon John transfer tools to ensure to financial contributions by The Society produced a STEWART, Michael Patrick compliance with the EU level of charities may be required to avoid preliminary briefing on the TRAYNOR, Scott protection of personal data. This is compromising the independence agreement and implementing VAILLANCOURT, Meghan Elizabeth WALLACE, Natalie of relevance to the UK as a third of and confidence in the sector; legislation in advance of the WALLACE, Rhona Emily country from 1 January 2021. the potential for the waiver debate. The Policy team will WHITWELL-CLAYDON, Jennifer to significantly prejudice the be looking more closely at Rose Hate crime interests of the survivor and their terms in the coming days WRIGHT, Thomas Ross The Criminal Law Committee expose them to the costs of legal and weeks. YOUNG, Ciara Jayne

Social media guidance revised Updated guidance on using social media has been published by the Society. It covers the opportunities to be taken, an outline of the main platforms currently in use, and security considerations, as well as matters of good practice and the legal and ethical considerations that may arise. The guidance can be found in section E, division B of the rules and guidance on the Society’s website. An introduction by Antony McFadyen of the Technology Law & Practice Committee, with some summarised “golden rules of thumb”, is at www.lawscot.org.uk/news-and-events/law-society-news/ socialmediaguidance/

January 2021 \ 39 In practice

SOLICITOR ADVOCATES

Solicitor advocates: a 30 year celebration To mark 30 years of the law enabling solicitors to become solicitor advocates, in 2021 the Journal will profile some who have made their mark in the role. First, Fiona J Robb recalls how it happened, and how to qualify today

one view, 12 May 1993 Thirty years in law How can you become could be said to be most This innovation followed many years of a solicitor advocate? appropriate starting point lobbying from Scottish solicitors who The Society of Solicitor Advocates runs an to celebrate the sought the right to plead before Scotland’s introductory course for prospective solicitor On introduction of the first supreme courts. On one view the battle advocates each year, usually in May. The solicitor advocates. On that was won with the drafting of the Law event is intended for all solicitors (civil or day the first admission ceremony took place, Reform (Miscellaneous Provisions) criminal) who are thinking about applying for attended by my predecessor as director of (Scotland) Act 1990, which imported extended rights of audience but are unsure of Professional Practice, Bruce Ritchie. He had a new s 25A into the Solicitors (Scotland) what is involved. been tasked as the individual within the Act 1980, authorising the Society’s Council Thereafter the process is run by the Law Society who was responsible for the scheme to establish standards to allow a solicitor Society of Scotland, which runs the training and for the working party on rights of to have a right of audience in the supreme courses and exams. audience. courts. The relevant provisions of the The structure of the courses differs for The Journal account, published in June 1990 Act came into force in 1991, so with a criminal and civil rights of audience training. 1993, records the day as “cold, overcast and generous interpretation 2021 is the year to Candidates must have recorded six days’ snell with an Edinburgh nor-east wind”. It was begin a period of celebration for 30 years experience of sitting-in to become familiar also observed as being remarkably prosaic, of the growth and development of solicitor with court procedure before completion considering its revolutionary nature. “If you advocates. of the course. hadn’t known, you wouldn’t have known,” How have things developed? We now The civil course is assessed by way said a solicitor who happened to be there. have 195 civil solicitor advocates and 142 of both oral and written assessments and The first intrant to the court was Robert criminal solicitor advocates, including five the criminal course is assessed by way Shiels (a member of the working party), and who are qualified in both areas. We have of an oral assessment. at that first ceremony he was accompanied seen solicitor advocates go on to become There is usually one exam diet per year by seven other colleagues. They were Queen’s Counsel, sheriffs, senators, that candidates are able to undertake. There welcomed by Lord Prosser, who commented: Solicitor General and , are two exams for all candidates, one on the “Your admission to rights of audience in the and during the next year the Journal practice and procedure of the relevant courts High Court is a change, an innovation in the will feature profiles of a number of and one on professional conduct. division of work, a variation in the roles. solicitor advocates, showcasing their I believe that qualifying as a solicitor It will prove significant in its usefulness achievements and demonstrating that advocate is a great career development and in the attainment of better justice. If it does they have, as suggested by Lord Prosser, I hope that the profiles of the individuals not achieve that, it is of no significance been substantial contributors to the featured over the next year will encourage and no use.” attainment of better justice. more solicitors to take that next step.

Fiona J Robb is director of Professional Practice at the Law Society of Scotland

40 / January 2021 Sir Gerald ASK ASH bows out at 91 Founder-editor of Scottish Criminal Case Reports calls it a day after 40 years

The end of 2020 saw the end of an era in Scots law publishing, as Sir Gerald Gordon QC retired as editor of the Society’s publication Scottish Criminal Case Reports after completing 40 years in charge. Now 91, Gordon has edited the series since its inception in 1981 and, with only a few exceptions, has edited every report and written every case commentary published to date. Though he holds a special affection for a series he was very much involved in creating, Gordon told the Journal that it was not actually his idea but that of the late John Boyle, then in charge of Feeling the need to bond the Society’s publications fund. “That was at a time when the Scots Law Times was way behind with COVID makes it hard for a trainee to feel one of the team reporting, and Crown Office had started sending roneoed accounts to the fiscals and defence Dear Ash, to suggest a Zoom quiz night with solicitors were getting a bit miffed because they As a trainee, I feel that COVID has colleagues. This allowed colleagues didn’t have this up to date information when the particularly impacted me as I am to form teams and interact in a more fiscals did.” Which makes it a little ironic that missing out on being able to interact relaxed setting. It also helped when defence lawyers have been known to refer to with colleagues in the office. Other she was having to contact the same the series as the “fiscal’s friend”, something that more senior colleagues seem to have colleagues for work matters later, as she amuses him greatly. a rapport with each other already, and felt she knew more about their sense of Gordon’s condition for being involved was often seem to interact for social reasons humour and likes/dislikes through the that he would be allowed to write commentaries by Zoom, but I don’t yet have such chat at the social event. Therefore why on cases if so minded – not a usual feature of bonds with people and seem only to don’t you suggest organising such an mainstream law reports. “I started with some be contacted with various boring admin event as a bit of an icebreaker – it will trepidation, because I had at that time fairly tasks. I don’t want to seen ungrateful as also allow you to escape from some of recently become a full time sheriff at Glasgow and I do have a job at least, but I can’t help the more mundane admin tasks. didn’t know quite how their Lordships would react feeling demotivated. I also suggest that you have a call to a sheriff telling them off. Actually they were with your line manager to discuss other very good and I got a rather nice letter from [Lord Ash replies: projects or cases you might want to get Justice General] George Emslie after the first issue. I can sympathise with those who involved in. This may then at least In fact, I think the bench treated me much more have been robbed by COVID of the allow you to be kept in mind for respectfully than I treated them!” opportunity to interact fully and build other tasks which may be of a more In any event SCCR very quickly established rapport with colleagues. You are challenging nature. itself, and kept its status even as other law certainly not alone: one of my friends Please do remember that you are not reporting became more current. As it does today, started a new job just prior to when the alone in how you are feeling, and that though to a different mix of content: “The work pandemic disrupted normal life, and she you need to find creative ways to help of the courts is different and the number of too, despite being more senior, has found you through these challenging times. cases has exploded. We no longer worry about it challenging to interact with others. On a positive, there is now a vaccine and housebreakings; we worry a little still about drugs; However, one of the ways my there is potentially some light at the end we never worried about ‘historic sex cases’ in those friend tried to reach out to others was of this long tunnel. days – we didn’t have any.” Gordon, however, has not lost his forthright manner: one of the last cases he reports is “a rather pointless five judge thing”. Send your queries to Ash His retirement marks the end of a publishing career that began with a Scots Law Times article “Ash” is a solicitor who is willing to Please note that letters to Ash in 1956, three years after his admission as an answer work-related queries from are not received at the Law Society advocate, and includes the standard texts on solicitors and other legal professionals, of Scotland. The Society offers a both criminal law and criminal procedure as well which can be put to her via the editor: support service for trainees through as SCCR. However he recalls an inauspicious [email protected]. Confidence its Education, Training & Qualifications start – his first submission was rejected by the will be respected and any advice team. Email [email protected] late T B Smith, who disagreed with his analysis published will be anonymised. or phone 0131 226 7411 (select option 3). of Donoghue v Stevenson. Fortunately for the profession, that proved to be no deterrent.

January 2021 \ 41 In practice

PRO BONO

Pro bono: a world of opportunity Pro bono work can be hugely rewarding for firms and solicitors alike. If you’re considering making it one of your 2021 resolutions, read this compilation by the Society to discover the impact it makes on solicitors and the charities they support

cannot be overestimated. Particularly during the Case study one pandemic, this is a valued and valuable part of Case study two our contribution to the communities in which we / RYAN MCCUAIG/WHO CARES? SCOTLAND SAFE HARBOUR live and work. The charity’s view: The solicitor’s view: The solicitor firm’s view Duncan Shaw, chief Ryan McCuaig, trainee We encourage our people to take part in CSR executive officer, solicitor at Thorntons projects, because we see the positive results Safe Harbour Law and chair of the for everyone involved. They get to face new Safe Harbour supports board of Who Cares? challenges and take on responsibilities in ways people facing serious Scotland that help them grow and develop. At times this mental health issues, ranging I decided to become a solicitor involves advising on unique and complex legal from undisclosed childhood trauma, sexual because I wanted to give a voice to challenges. Our support for Safe Harbour has assaults and transgender issues to PTSD, others. That desire is rooted in my experiences of involved specialists from across our firm, and stillbirth and other traumatic situations. Often, the care system at a young age. Having systems, we are proud to have been a constant in the life our clients have not responded to standard processes and professionals involved in your life of this small but valuable charity. NHS services and need long term and effective can be overwhelming and, for a child at the centre, We support a wide variety of projects. Many, intervention, support and care. Without the it can feel impossible to have your voice heard. I’ve like our work with Safe Harbour, have developed support of Shepherd and Wedderburn, Safe never forgotten that feeling, and it has motivated organically. However, we also play an active Harbour would not have survived. me throughout my education and career. role in more formal projects. Gillian Carty, our The whole team has When I began studying for my Diploma, chair, was instrumental in establishing our been consistently on our I connected with Who Cares? Scotland, a charity Citizens Advice Bureau project, which involves side. Partner Liz McRobb providing advocacy for care experienced people, our solicitors meeting and helping members (right) worked with us as well as opportunities for them to come together of the public. Elouisa Crichton volunteers for on our strategy under as part of a community and campaign for change Maternity Action, which runs an advice clinic the Pilotlight programme to the system. In 2018 I successfully applied to on Mumsnet to help answer questions about in 2013, and has mentored join their board and, in 2019, I was appointed chair. maternity and family leave. The firm is a us ever since. She also met and It has been a great privilege to carry out that role member of the Competition Pro Bono Scheme, listened to clients as they shared harrowing alongside my traineeship. Thorntons have been established with a number of UK practices life stories and explained how, through Safe incredibly supportive, for which I am immensely to support businesses and individuals with Harbour support, they had been able to rebuild grateful. competition law issues. We have been fortunate their lives. Joining a charity board has many benefits for to advise on several novel issues involving Senior associate Elouisa Crichton supports those pursuing a legal career. In private practice different emerging markets. us with the same passion. She also listens you will be expected to demonstrate commercial Each of our colleagues is encouraged to when I need guidance and support to navigate awareness. Chairing the Who Cares? Scotland take up to five days’ paid leave each year to a difficult time, never more so as we face the board has developed my business skills. The undertake volunteering work with good causes challenges of the pandemic. Truly, we are all in trustees monitor the charity’s strategic direction, as close to their hearts. Last year, we hosted the this together. well as ensuring that it meets its obligations to its first (virtual) Shepherd and Wedderburn Values In the last year we benefited from having workforce and those it serves. We also oversee the Awards, at which we recognised colleagues senior associate Lauren Miller join our board, budgeting process, HR, policy development, and who had made special contributions to CSR and we continue to receive specialist support hold relationships with key internal and external projects. Having dedicated matters and time from many other committed advisers. To all stakeholders. As well as chairing meetings, my role recording codes ensures that the time they at Shepherd and Wedderburn, your support often involves ambassadorial and representative spend is captured and people feel empowered has meant we can focus on what matters: work, including relationship development and to participate. The personal growth achieved people’s lives. public speaking, all relevant skills in the “day job”.

42 / January 2021 Recently, the board recruited the new CEO, background, I knew it was the right thing for Louise Hunter. That involved consultation with Case study three me to commit time towards. It has been hugely care experienced members of the organisation GAVIN MCEWAN/LAWSCOT FOUNDATION rewarding to watch the Foundation carry out and our staff, reflecting the charity’s values, its valuable work, to know that it is making a alongside the more traditional aspects such as difference, and to have made a contribution of reviewing applications and holding interviews. The solicitor’s view: my own. It was important to recruit the right person, and Gavin McEwan, leading that process alongside our vice chair partner and head The charity’s has given me further experience, which will help of Charities, view: Heather in my career as a solicitor. Turcan Connell McKendrick, I find my role as chair immensely satisfying, When the Law Society Lawscot knowing that the work we do helps ensure of Scotland asked me Foundation that voices of children and young people are in 2015 whether I would be No matter the size of heard; and that we are fighting for their rights, willing to help it create a new charity to relieve the charity, there are and helping them form bonds with other care hardship amongst young law students, certain tasks and regulatory experienced people. That is why I do it. The I immediately agreed. The Lawscot Foundation functions that must be completed, each year. fact that the experience might also be useful is the result of that pro bono work. Following It’s very easy, especially when getting a new professionally is a bonus. its establishment, I volunteered as one of its charity off the ground, to focus on its purposes first trustees. My pro bono involvement has – such as giving grants to young people – but The charity’s view: included a range of work and advice from the legal and regulatory requirements are just Marie-Claire drafting the constitution, providing guidance as important. Jones, director of on charity law and governance, to drafting This is why we are so grateful to have had fundraising and key resolutions and fundraising agreements, Gavin’s expertise, advice and patience from the development at Who as well as carrying out the day-to-day role of outset. He has been extremely generous with Cares? Scotland charity trustee. his time and knowledge in helping the charity Ryan has been an asset to When I was at law school in the 1990s, to go through all the required steps just to our board from the moment he joined. Not only the financial situation for many students was be registered. This has included drafting the does he bring his valuable perspective as a becoming much tougher. For many, it has constitution, advising on what is required by person with lived experience of the care system, not improved since. That bright potential law the regulator, OSCR, and even what must be he also brings an astute mind, knowledge of law students are denied an opportunity to join the displayed on publicity materials. and an eye for detail, that come with being a profession merely through financial and other It’s hard to imagine navigating the complex legal professional. disadvantage is an injustice: it represents a loss world of setting up a new charity without this There is a great synergy between the legal of young legal talent from diverse social and sort of professional expertise. While the output sector and our work. We are both committed economic backgrounds. of charities, such as fundraising and impact, to human rights and to representing those The work of the Foundation means so much is normally what is focused on, the work of who may need help in having rights met. If any to the students receiving bursaries, mentoring the solicitor keeping us right and providing readers would like to know more, and how they and other support. It also means a lot to guidance is critical and does not often get the can be involved, visit www.whocaresscotland.org. me personally: coming from a similar social spotlight it deserves!

of crisis, and there are still extremely Collaboration is key, and this is where The pro bono specialist difficult times ahead for us all, not just opportunities can and should be harnessed. in 2021, but for many years to come. Swift action taken to move face-to-face REBECCA SAMARAS University law clinics, law centres, charities, support online will, I hope, allow us to indeed all advice agencies have reported, continue to help the most vulnerable in Rebecca Samaras is unsurprisingly, a significant increase in society. All Scottish university law clinics director of Pro Bono demand. With further reductions in grant have taken such steps. This has not been and Clinical Legal and public funding expected, last year easy, and we all rely heavily on the pro bono Education at the highlighted the widening cracks in access to support of our legal community. University of Edinburgh justice provision. I would like to end with a call to action Law School, member Throughout 2020, the Access to Justice (or a shameless plea!) for the collaboration of the Society’s Access to Committee worked hard to campaign for and community for which our profession Justice Committee, trustee of the crisis support, not just for now, but for is renowned. We cannot provide support Access to Justice Foundation, and chair of the permanent solutions. There were financial without you, and the need for more Scottish University Law Clinic Network campaigns too, with grants being awarded volunteers for our law clinics is greater Forever the positivist, I start with a much- by the Community Justice Fund through the than ever. If you are an individual or a firm used quote by Einstein: “In the midst of Access to Justice Foundation to charities and would like to know about pro bono every crisis, lies great opportunity.” such as JustRight Scotland, Shelter Scotland opportunities in your community, please get 2020 will be remembered as a year and the Legal Services Agency. in touch at [email protected].

January 2021 \ 43 In practice

RISK MANAGEMENT Phone to beat the fraudsters Matthew Thomson of Lockton revisits the topic of client account fraud with some advice and accounts of real cases reported under the Master Policy

hat is the best single weapon funds please instead be paid into the following details of the account into which the proceeds a solicitor can deploy in the account? should be paid. When the transaction settled, war against the fraudsters Nothing about the email caused the firm the free proceeds were paid into the account determined to steal your any concern. There was nothing unusual in purporting to belong to the nephew, and the W clients’ money and leave you the language, the email address appeared firm considered the transaction concluded. carrying the can? correct, and the instructions made sense. The It was therefore something of a shock when Answer: the telephone. While it would be cashier, though, had read all about fraud risks the nephew contacted the firm a few days later. lovely to roll out a new and dynamic risk in the papers, so she wasn’t going to take any Following the sale, he was keen to move uncle’s management tool to the profession, any one chances. She emailed the partner responsible money into an income generating fund to of the payment frauds intimated to the Master for the client to check that she was content provide for his expenses. When could he expect Policy during this time of COVID – and indeed in for the payment to be made as instructed. On receipt of the proceeds? the years before – could have been averted by receipt of confirmation, again by email, she Following initial panic, a full investigation judicious use of the good old telephone. transferred the sale proceeds – a little over ensued, and it was discovered that a member £500,000 – to the account instructed. of staff’s emails had been hacked. Fraudsters No comfort Unfortunately, the fraudsters who had sent had then been able to intervene at will, and the Take, for example, the following situation. the original email requesting payment of funds email providing details of the destination bank The firm had acted for commercial clients to a new account were also able to intercept the account had not come from the nephew. Again, for many years, who although based in Jersey cashier’s email to the partner. So the comforting there was no answer to the claim then pursued had long been active in the Scottish property confirmation received from the responsible against the firm for reimbursement of the market, buying up rather dilapidated commercial partner had in fact come straight from the client’s funds which had been paid away without properties, doing them up and selling them on. fraudsters – with the result that the funds were proper authority or instructions. So receipt of instructions to act in the sale of a paid not to the clients, but into the fraudsters’ warehouse unit with yard and access road was bank account. Executry sting no surprise. There was no answer at all to the clients’ Fraudsters are constantly on the lookout for The transaction proceeded uneventfully and subsequent claim against the firm alleging, opportunities to steal client funds. And those was heading quietly towards settlement when rightly, that they had paid away client funds opportunities don’t only arise in conveyancing the world blew up in March 2020. Like office without instructions to do so. situations. staff all over the country and the world, the As a small private client practice in rural firm’s team were dispatched with laptops and Attorney sale hack southern Scotland, the firm did not consider mobiles, and set up the virtual operation with In another case, the nephew of an elderly client, itself particularly attractive to high-end hardly a blink. acting under a power of attorney, instructed fraudsters, nor then especially vulnerable to the With settlement just days away, the firm in the sale of his uncle’s house. sort of problems the senior partner had heard an email was received from the The firm had acted for the elderly about at Law Society of Scotland events. clients. COVID-related challenges gentleman for many years, and had The first few weeks following the to the business model had details of his bank account on file. announcement of the national lockdown had impacted on cash flow, and It was not, though, considered been hard going. The firm was a traditional one, the proceeds from the unreasonable or unexpected when his and the move to laptops and kitchen tables had sale could not now nephew asked if the sale proceeds could not been easy for partners or staff. But as spring be used as had instead be paid into his own account. Uncle’s moved towards summer, the senior partner felt been intended for only bank account, he reminded the firm, was that the worst was behind him. Everyone was further projects. an old fashioned deposit account, and it would working away quite well, and things seemed So could the be much easier to exercise his obligations under to be going relatively smoothly, barring the the power of attorney if he had easy access to occasional wi-fi related emergency. the funds. Client matters, though, were proceeding So it was no surprise when, a few days later, generally unaffected. In particular, the executry an email was received from the nephew with paralegal was working away at his home, and

44 / January 2021 “A phone call to a client or a colleague to check their instructions takes minutes”

finishing up the administration of the fairly small raised the alarm. email) verification. estate of a local gentleman who had died the Following investigation, • All staff should receive summer before. Knowing the case, and in fact it was discovered that the email regular training regarding having known the gentleman, the cashier was account had been accessed and the risk of payment fraud, how it is not especially surprised to receive an email manipulated. The instruction to make perpetrated and how it can be avoided. from her colleague instructing her to make the payment had been made by a fraudster, • Have strong procedures and protocols in a payment out of the executry account, and who had then also received and replied to place regarding the checking and authorisation providing payment details. She was, though, the cashier’s query. Here again, client funds of any payments to be made from the client surprised to see that the amount she was told were paid away on the strength of fraudulent account (or indeed the firm’s own account). Dual to pay exceeded the balance available. instructions, and without proper authority. signoff for larger amounts is always wise. In ordinary times, the cashier would have • Make sure that clients understand that the taken the opportunity to step away from her Rules for safety bank details provided to you are fixed. Email desk, wander up from the cashroom, and have So what can we learn from these sorry tales? instructions regarding changes to the account a word with her colleague. But these were not • Always treat email instructions with a degree details will not be acted on. ordinary times, so email had to suffice. She fired of suspicion. • Clients fall foul of fraudsters too. Make sure a quick note to her colleague: “insufficient funds • Any concerns regarding the veracity of an they know that you will not contact them by for payment – please advise”. email need to be taken seriously and acted on. email to advise a change of your bank details. On receipt of a response – “just pay the • Checking is better than not checking. Always. • If you do fall victim to fraudsters like the firms whole balance, same account details please” • But checking by email into instructions in these examples, this should be reported – she proceeded to make the payment as received by email is worthless. If the under the Master Policy as a matter of urgency. instructed. And thought no more about it. instructions were fraudulent, the response The quicker Master Policy insurers are made It was several weeks before the executry might well be intercepted too, and no comfort aware of matters, the more likely that some of paralegal next worked on the case. Checking can be taken from any confirmation received. the funds might be recovered. his email sent box for his correspondence on • A phone call to a client or a colleague to the case, he was surprised to see an exchange check their instructions takes minutes and could of emails to and from the cashroom. He had no save hundreds of thousands of pounds. Matthew Thomson is a client executive in the recollection of instructing the payment, and on • Every member of your staff should be aware Master Policy team at Lockton. He deals with all looking at it carefully it made no sense in the that bank account details provided in an email aspects of client service and risk management for administration of the estate. He immediately should never be relied on without further (non- solicitor firms in Scotland.

FROM THE ARCHIVES 50 years ago 25 years ago

From “Drinking Laws – Committee of Inquiry”, January 1971: “There From “Training Advocates”, January 1996: “Last autumn a major change are many anomalies in our Scottish licensing code, the origins took place in the training provided for intrants to the . of which date from the eighteenth century; these will intrigue Until then, intrants... commenced devilling at various times throughout the the historian of 2000 A.D., but they merely irritate the practising year, subsequently being admitted as advocates on any of five different solicitor of 1970!... Saturday night is a favourite night for functions dates each year. During devilling, the main responsibility for training has and a special permission is needed for the function to proceed been assumed by [the] devilmaster. However, as from October, all devils until midnight... but never on Sundays! Must the taking of a drink will now commence training on the same date each year... They will between 12 midnight and 1 a.m. suffer a ‘sea change’ and in the undergo a structured training programme before admission to the Faculty twinkling of an eye take on a sinister hue?” in either the following June... or... July.”

January 2021 \ 45 In practice

WORD OF GOLD

Let’s raise the “R” rate (no, not that one)

Stephen Gold asks: What will it mean to be resilient in the post-COVID world?

appy new year. Boy, are we Rumsfeld famously put it, “known knowns, Time for questions happy to see the back of the known unknowns and unknown unknowns” So too is having enough cash in the business. old one. We’re still in the lurk in the undergrowth. A surprising number of firms still think it’s fine to H woods. The first half of this borrow to pay tax, VAT and PI, as long as partner year, perhaps longer, will be Resilience reimagined drawings are protected. Others are not so profligate, tough, as social distancing We’ve heard a lot about “R”, the number that but still have drawings policies that leave them continues, unemployment bites, and businesses tells us whether COVID is receding, or as dangerously exposed to sudden changes in the begin repaying £200 billion of Government- now, galloping ahead. There is another “R” of wind. Every business should have a contingency underwritten debt. Yet with the arrival of three equal importance: resilience. How prepared fund of no less than four months’ cash cover vaccines and a Brexit deal, four horsemen not of are we to cope with and quickly recover (six months’ is better), and in all circumstances, the apocalypse, but of hope and optimism can from shocks? Last March, at a national a reliable cash flow projection which enables be seen peeking over the parapet. “Consider the level, the answer was, “we’re not”. Many intelligent decision making. If a firm cannot build parties you didn’t have this holiday season as thousands of our fellow citizens have died that level of reserve over a reasonable period of merely postponed,” advises Goldman Sachs. as a result. We continue to suffer. Sir John time, fundamental questions need to be asked Markets are high. One in five Britons wants Bell, regius professor of medicine at Oxford, about how it is run, and whether it has a future. to start a business this year, rising to one in was instrumental in forging the partnership COVID has been ghastly, but it has at least three among 18-34 year olds. The social and between the university and AstraZeneca to created a climate where it is legitimate to question economic costs of the pandemic have left us all develop a British vaccine. He has made clear his everything about the way a firm operates, and feeling battered, but compared to many other frustration that years of neglect by successive make changes. Leaders will never have a greater sectors, such as travel, hospitality and retail, governments have left the country without opportunity, nor a greater imperative, to reappraise the professions have had a pretty good war. the means to manufacture the vaccine at the strategy, and put every aspect of their firms’ Though their natural instinct is always to be necessary pace. performance under the microscope. Resilient cautious, the growth opportunities as society It is not just government that has been leaders cultivate optimism in themselves and their is liberated are clear. neglectful. COVID has compelled businesses people, not in a Pollyanna-ish way, but with a So too is the opportunity to make permanent of every kind to redefine what it means to be mindset that says, we can get through this, and go improvements to our working lives. It’s realistic resilient. Law firms have shown great agility, on to greater things, if we are thoughtful, nimble, to hope that offices will once again hum with but often they have started from a low base. unafraid to look the hard questions in the face, and activity. But embracing a mix of home and office It matters that the lessons of COVID are not take decisive action. As Goldman Sachs working will be a boon to firms and individuals. forgotten as things loosen up. (and Shirley Bassey) attest, it’s time to get the The compulsory drudgery of the five (or six, Perhaps the most important is that the party started. or seven) day commute has gone for good. enemy of resilience is a focus on short term That mythical creature, work-life balance, equity partner returns. Resilient businesses Stephen Gold was the founder and senior may actually be glimpsed. With location less are willing to make necessary sacrifices today partner of Golds, a multi-award-winning important, firms out of the major cities, who for the sake of sustained performance in the law firm which grew from a sole practice often have difficulty recruiting, may now future. Premises and technology infrastructure, to become a UK leader in its sectors. have access to quality people who would not people development, effective sales, marketing He is now a consultant, non-exec and trusted normally consider them. Conversely, living in a and finance functions: these are all costly, but adviser to leading firms nationwide and rural or semi-rural location while working for a investing in them is non-negotiable if a firm is internationally. e: [email protected]; city centre firm is now entirely plausible. There serious about long term success. t: 0044 7968 484232; w: www.stephengold.co.uk; are reasons to be cheerful, but still, as Donald twitter: @thewordofgold

46 / January 2021 COP26 COP26: a challenge for 2021

Ahead of the Glasgow climate change summit in November this year, the Society’s survey of members’ attitudes to the subject is helping with plans to develop their interest

is a year not short of challenges for us the issue of climate change affects us all but is interpreted all. Against the backdrop of COVID-19, in different ways. A 57% majority of those responding which continues to have a significant and to the survey indicated that climate change was either 2021 immediate impact, planning is going somewhat or very important to them in a professional forward towards November 2021 when capacity, which is encouraging at the current time. the 26th UN Conference on Climate We recognise that a number of solicitors are already Change (COP26) is to be held in Glasgow. directly involved in advising clients on climate change This event in Scotland presents an opportunity to law and their responsibilities, on the development of increase awareness of the effects of climate change and to sustainable business practices and in green investment. stress its global importance. Looking to the future, climate Other solicitors have a personal interest in environmental change will continue to have a long term impact while the concerns and/or may be introducing sustainable practices pandemic is now the immediate concern. We would like to for their own business. highlight what is happening now in the lead up to COP26 Other matters arising from the survey included the and to explore the opportunities offered to us as the legal immediate implications of holding a large-scale conference profession in Scotland. such as COP26. There will be inevitable local practical The UK Government held the Climate Ambition Summit impacts and traffic disruption in Glasgow, due to the sheer in December 2020 to raise awareness of COP26. This size of the event. It will impact on resourcing involving coincided with the fifth anniversary of the ratification of Police Scotland, with their responsibilities for maintaining the Paris Agreement, which committed to limiting global public order and safety, and thereafter on the courts and warming to well below 2ºCelsius, and preferably to 1.5º the justice system. Celsius, compared to pre-industrial levels. The event, The survey highlighted that COVID-19 has influenced described as “a major milestone” on the road to COP26, views of climate change to some extent, with 49% sought to promote the key COP26 challenges of adaptation responding that, in their professional opinion, climate and resilience, clean energy and clean transport, change was somewhat or much more important than the finance and nature based solutions. How we as the legal pandemic, and 29% saying it was of equal importance. profession can feed into these themes underpins The information from the survey allows us to consider our work going forward. opportunities to influence our membership and beyond, Looking towards COP26, the Society has set up and develop relevant training and other opportunities for a crosscutting policy working group to look at the support and engagement for members in 2021. opportunities presented by the conference in Scotland, and the issue of climate change for the legal profession What are the plans? more generally. The working group’s first key task was With the support from the profession around these topics, to develop and undertake a survey of the profession. we are engaging with our members and stakeholders This has now concluded and the results have been to help to build networks and draw on our combined published (bit.ly/LSSCOP26). professional experience and support. We are planning The working group considered that to offer opportunities to build our a brief survey of the profession was members’ current level of interest appropriate at this stage to obtain and awareness of climate change valuable information and to ascertain and associated issues. how best to increase awareness of So, we echo the message from the conference and develop plans the Climate Ambition Summit that to explore the opportunities for the scale of the challenge facing the engagement that COP26 offers. world is huge. We are keen to be part of Glasgow’s success and show Gillian Mawdsley and Alison McNab What did the report say? what climate change means to the are policy executives with The responses to the survey were the Law Society of Scotland profession, given its importance varied, which is hardly surprising since and gravity.

January 2021 \ 47 In practice

THE ETERNAL OPTIMIST Here we go again

Reflecting on what we achieved last year should help overcome any trepidation at the year ahead, Stephen Vallance believes

elcome back to my little corner will not be achieved when they move from the on digital marketing. As we look back, these of the Journal. If any of the discussion to the execution phase and client journeys no longer feel as long or as difficult topics that I cover resonate work inevitably interferes. Rather than getting as they were at the time. Isn’t this, then, the W with you or there is a just a little done each week towards it, their right moment to think about the next round of particular issue that you’d plans sit neglected. They justify this by the changes that we need to consider? What do you like raised, please contact demands of fee paying work. Indeed, one of the want to achieve in the year ahead, and what are me at [email protected]. reasons why so much was achieved last year the steps that you or the firm need to take that January again! Who would believe it, with all was that things were forced on us and we had to will allow you to get there? The exciting part, the challenges last year brought addressed, and prioritise them for our businesses to function. I hope, is that the last year has shown us a moment to reflect back on all that we achieved, There can be little doubt that 2020 was an almost anything is possible. often in the face of considerable adversity. unusual year (my new year resolution is to give This year already is exposing new issues to I usually spend the last day or two of every up the word “unprecedented”), and we all should address (I also gave up the word “Brexit”). We year hopefully taking some satisfaction from be suitably proud of ourselves for what we have already know that change and challenges are what has been a good year (however one might achieved just by steering our businesses through the only constant in life and business, and we define that). Inevitably though, as I look ahead, to 2021. For those of you who do not remember don’t have to look far to see a number of areas a certain dread fills me at the thought of having 2008, 2001, 2000, 1987 or 1974 (a small prize if that might drive these. Likewise the speed of to do it all again. Whether it is the thought of you can confirm the major challenges in each), change will never again be as slow as it was in having to generate all the fees again or perhaps or any of the smaller recessions or disasters in the last few years (yes, I meant what I wrote deal with other business issues, it always feels between, what we have come to realise is that there). Having overcome as much as we have, more daunting contemplating what lies ahead, these unusual occurrences are in fact a recurring though, what lies ahead shouldn’t frighten us. even if only a repeat of what has just been done. theme in the modern world. Likewise, in the We just need to decide what we want to achieve Over time I have come to realise that there is microcosm of our own practice areas there are and break it down into manageable pieces, then no point in worrying about the whole year. It is changes happening constantly. Perhaps, then, as make sure we do them. easier to break things down into smaller, more with our finances, we should be looking ahead digestible chunks and deal with them a month each year at how best to prepare ourselves for or a quarter at a time. Most of us, I hope, will some of the challenges on the horizon or some already be doing that with financial projections of the changes that we want to make. and monthly management accounts. Do we, 2020 saw the profession embrace technology Stephen Vallance though, also set out a schedule for our bigger and leapfrog a decade forward, in a way that it works with HM Connect, issues and goals, and break them down into hasn’t done for 20 years. We have seen huge the referral and support network operated by achievable chunks as well? All too often I’ve progress in remote working, e-signatures, Harper Macleod spoken to firms with great plans that you know paperless offices, and an even greater reliance

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January 2021 \ 49 Organisation: Lockton Companies LLP Location: Edinburgh Contract Type: Full-Time Salary: Competitive Practice Area: Other PQE 3+ years

Lockton is the largest privately own global insurance broker in the world. Our UK and Ireland operations have almost 1,000 FTE across a network of branches, including those situated in Edinburgh, Glasgow and Aberdeen.

Job Description

Our business has achieved significant success in recent · Experience and knowledge of Scottish residential years with strong organic growth and positive Client property work – Risk Management Role and employee feedback. The internal culture of the · Experience of Corporate Legal work – Transactional organisation, led by our Partners, is recognised as a key Risks Role differentiator and the quality of service delivery is highly · Experience of building relationships with stakeholders rated by Clients – including The Law Society of Scotland and Solicitor firms in Scotland. · Interested in risk management and compliance for law firms To maintain these high standards, Lockton is expanding in Scotland and so is investing in talent for the future Knowledge and Skills Required in our dedicated Law Society of Scotland Team and beyond. · Excellent interpersonal skills and communication We have two roles, the first of which is dedicated to skills – writing reports, articles, letters and the production and delivery of Risk Management to the presentations as well as delivering talks and seminars Scottish legal profession. This includes the development internally and externally; ability to communicate openly of online learning modules and tools, delivery of and confidently, conveying a high level of integrity and seminars, writing articles together with identifying loss credibility trends and building procedures and processes which will · Understanding a collaborative organisational culture aid clients in both their understanding and elimination · Strong stakeholder management and client of risk. engagement skills The second is a role within our Transactional Risks team · Ability to think and act strategically as well as being working with a broad base of clients, both buyers and task focused sellers, as well as for the firms that advise them. The · Self-starter – motivated and able to work to deadlines role will include reviewing and advising on transaction with authority documents, Due Diligence and various M&A related · Commercial awareness of the legal sector insurance products, including Warranty and Indemnity, Tax and Contingent insurances and the candidate will · Awareness of The Master Policy for Professional ideally have past experience in Corporate Legal work. Indemnity Insurance (desirable) · Flexible – able to adapt to changing situations and Employee Specification competing demands

Scottish qualified solicitor with experience of working in the legal profession in private practice, within the public sector or as “in-house” legal resource

To apply, please send your CV and cover letter to: Mark Gray Client/Claims Director [email protected] 0131 345 5557

Journal_January_2021_Lockton_FP_.indd 1 05/01/2021 11:06 Organisation: Lockton Companies LLP Location: Edinburgh Contract Type: Full-Time Salary: Competitive Practice Area: Other PQE 3+ years

Lockton is the largest privately own global insurance broker in the world. Our UK and Ireland operations have almost 1,000 FTE across a network of branches, including those situated in Edinburgh, Glasgow and Aberdeen.

Job Description

Our business has achieved significant success in recent · Experience and knowledge of Scottish residential years with strong organic growth and positive Client property work – Risk Management Role and employee feedback. The internal culture of the · Experience of Corporate Legal work – Transactional organisation, led by our Partners, is recognised as a key Risks Role differentiator and the quality of service delivery is highly · Experience of building relationships with stakeholders rated by Clients – including The Law Society of Scotland and Solicitor firms in Scotland. · Interested in risk management and compliance for law firms To maintain these high standards, Lockton is expanding in Scotland and so is investing in talent for the future Knowledge and Skills Required in our dedicated Law Society of Scotland Team and beyond. · Excellent interpersonal skills and communication We have two roles, the first of which is dedicated to skills – writing reports, articles, letters and the production and delivery of Risk Management to the presentations as well as delivering talks and seminars Scottish legal profession. This includes the development internally and externally; ability to communicate openly of online learning modules and tools, delivery of and confidently, conveying a high level of integrity and seminars, writing articles together with identifying loss credibility trends and building procedures and processes which will · Understanding a collaborative organisational culture aid clients in both their understanding and elimination · Strong stakeholder management and client of risk. engagement skills The second is a role within our Transactional Risks team · Ability to think and act strategically as well as being working with a broad base of clients, both buyers and task focused sellers, as well as for the firms that advise them. The · Self-starter – motivated and able to work to deadlines role will include reviewing and advising on transaction with authority documents, Due Diligence and various M&A related · Commercial awareness of the legal sector insurance products, including Warranty and Indemnity, Tax and Contingent insurances and the candidate will · Awareness of The Master Policy for Professional ideally have past experience in Corporate Legal work. Indemnity Insurance (desirable) · Flexible – able to adapt to changing situations and Employee Specification competing demands

Scottish qualified solicitor with experience of working in the legal profession in private practice, within the public sector or as “in-house” legal resource

To apply, please send your CV and cover letter to: Mark Gray Client/Claims Director [email protected] 0131 345 5557

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