Leaders in law: accredited Employee ownership: Divorce in a recession: legal technologists strength in adversity issues in valuing assets P.15 P.18 P.22

Journal of the Law Society of Scotland Volume 65 Number 9 – September 2020

Set up for the future COVID-19 marks one of those seminal changes in the human story. What new skills do we require as a result? 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 Click here to see Peter’s welcome Scottish Land Law message

Publishing under the auspices of the Scottish Universities Law Institute, the second volume Publishers Editor to this well-established and respected work is a thoroughly updated and comprehensive The Law Society of Scotland Email > [email protected] Atria One, 144 Morrison Street, account of Scottish land law. It brings together material of significant practical importance Read > www.lawscot.org.uk/news-and-events/blogs-opinions/ Edinburgh EH3 8EX in relation to the rights and obligations inherent in the ownership of land. t: 0131 226 7411 f: 0131 225 2934 Follow > twitter.com/jlsed e: [email protected] Key legislation includes: • The Conveyancing and Feudal Reform (Scotland) Act 1970 President: Amanda Millar Vice President: Ken Dalling Hold the line • The Title Conditions (Scotland) Act 2003 Chief Executive: Lorna Jack

3rd Edition, Volume 2 • The Land Reform (Scotland) Act 2003 Online resources There are times when I feel the legal seems intent on restricting the scope of October 2020 | £100 www.lawscot.org.uk (home page) profession is increasingly at the mercy of judicial review, even while it seeks to limit www.lawscot.org.uk/members/journal/ governments and public authorities that other forms of scrutiny over the exercise 9780414017832 Continuing from Volume I, the content of Volume II includes: www.lawscotjobs.co.uk appear to have little appreciation of the of its powers. Chapter 19: General Principles of Security Rights Subscriptions role of lawyers in defending individuals’ The second issue is the savage cuts Practising Certificate (inclusive cost) £680; rights and challenging abuses of power. to funding of advice centres proposed Chapter 20: Standard Securities Non-Practising Members (UK and Overseas, And if that is the case, they equally by Glasgow City Council. Two law PLACE YOUR ORDER TODAY inclusive cost) £315; Annual subscription UK £84; have little concern for the rights of the centres, including Castlemilk, the oldest Chapter 21: Floating Charges Overseas £108; Trainees Free sweetandmaxwell.co.uk less fortunate members of society who in Scotland, stood to lose their support Chapter 22: Involuntary Heritable Securities +44 (0)345 600 9355 Editorial may have a particular need of professional completely; others including Govan Chapter 23: Title Conditions and other Burdens Connect Publications (Scotland) Ltd help in standing up for those rights. faced cuts in the region of 33%. Five CAB Editor: Peter Nicholson: 0131 561 0028 Two things in particular have sprung to offices faced closure. No doubt, as the Chapter 24: Real Burdens e: [email protected] prominence in recent weeks. council said, it received many Chapter 25: Servitudes Advertising: Elliot Whitehead: 0131 561 0021 First we had the disgraceful more applications for support e: [email protected] Home Office video with than it could meet, but that Chapter 26: Judicial Variation and Discharge of Title Conditions Review editor: David J Dickson its slighting reference did not explain its priorities Chapter 27: Public Access Rights Online legal news: to “activist lawyers” in proposing a 60% cut in e: [email protected] preventing the removal financial and debt advice, Chapter 28: Nuisance and other Delicts Other Connect Publications contacts, of people seeking to at a time when need can telephone 0141 561 0300 Chapter 29: Social Control of Land Use establish a right to be only increase as the full Head of design: James Cargill (0141 561 3030) allowed to remain in the impact of the recession [email protected] Chapter 30: Compulsory Acquisition UK. It was, tardily, removed starts to bite. Chapter 31: Community Rights to Buy Editorial board from the social media channels As we sign off, a temporary Austin Lafferty, Lafferty Law to which it had been posted; the Home reprieve appears imminent, but these are Andrew Todd, Springfield Properties Plc Office’s permanent secretary accepted services that need more secure funding. Philip Hannay, Cloch Solicitors that it should not have been expressed It must be of great concern that long- David Bryson, Baillie Gifford Ayla Iridag, Clyde & Co in those terms; yet the Home Secretary established agencies that help thousands Kate Gillies, Harper Macleod LLP herself has since repeated the phrase. in less advantaged areas can be left at the That from a Government whose mercy of grant allocations in this way. ministers indiscriminately refer to “illegal” I fear that we are in a period that calls migrants when there is no illegality about for constant vigilance, and we must not be genuine refugees attempting to reach slow to act when necessary and call foul. this country, and which has failed so far Prompt and coordinated protest produced Disclaimer to pay the promised compensation to the results in both of these instances. There is The views expressed in the Journal of the Law Society of Scotland are those of invited contributors great majority of those wronged by the likely to be an ongoing need to stand up and not necessarily those of the Law Society of Windrush scandal. Oh, and which also for those who most need our help. Scotland. The Law Society of Scotland does not endorse any goods or services advertised, nor any claims or representations made in any advertisement, in the Journal and accepts no liability to any person for loss or damage suffered as a consequence of their responding to, or placing reliance upon any claim or representation made in, any advertisement appearing in the Journal. Readers should make appropriate enquiries and satisfy themselves be fore responding to any such advertisement, or placing reliance upon any such claim or representation. By so responding, or placing reliance, readers accept that they do so at Contributors their own risk. On no account may any part of this publication be reproduced without the written If you would like to contribute to Scotland’s most widely read and respected permission of the copyholder and publisher, application for which should be made to the publisher. legal publication please email: [email protected]

© The Law Society of Scotland, 2020 ISSN: 0458-8711 Stephen Glen Amanda Steve Love QC, Neil Total Net Circulation: 13,689 Vallance Dott Masson Grant Markie Campbell REUTERS/Russell Cheyne (issue specific May 19) works with HM is a specialist (co-author (co-authors) is managing Av. Net Circulation: 13,628 (Jul 18 - Jun 19) Connect, the adviser with with Richard are advocates legal counsel, Harper Macleod Co-operative Wadsworth) is with Compass Royal Bank referral and Development head of Family Chambers of Scotland support Scotland Law at Harper network Macleod

TR1218702/08-20 September 2020 \ 3 THE JOURNAL OF THE LAW SOCIETY OF SCOTLAND VOL.65 NO.9 – SEPTEMBER 2020

Perspectives Features Briefings In practice

04 Journal online 12 28 Civil court 36 O shaped lawyers The August website exclusives How do we still need to adapt Lessons from a video proof Explaining a new way of to deal with issues arising thinking abut training 05 Guest view 29 Corporate from post-COVID-19 ways of Laura Hutchison and Government support and 38 Professional news working? Sharon Cowan legitimate expectation Court plans; chief executive’s new role; policy work; 06 Letters 15 30 Intellectual property obituaries Legal aid in the Supreme Court; Profiling the first six Enforcement success in China Reviews accredited legal technologists 40 Suspicious activity reports 32 Agriculture reveals unexpected diversity: What happens to them? 07 Offbeat An airport – under crofting who else might apply? Quirky news; Profile column tenure? 41 Ask Ash Back in the office, feeling weird 08 President 18 32 Discipline Tribunal Standing up for the profession; Employee ownership trusts What happens on death? 42 Billable hour: fairy tales? virtual engagement are not only popular in Not as accurate, transparent 33 Planning succession planning: they and ethical as some believe The Society’s work on s 75 enhance business resilience Regulars agreements 44 AML audits Advice on good practice 22 34 Construction 09 People Achieving a fair financial Developments in adjudication 45 COP26 31 Consultations settlement on divorce may need The Society invites your 38 Notifications creative thinking in a recession participation in a new group 47 Archive 46 Risk management 49 Classified 24 First of two articles on 49 Recruitment The updated Ogden Tables corporate and commercial risks have been substantially revised, Are you an with an impact on awards O shaped lawyer?: 48 The Word of Gold Page 36 Good morale breeds success

ONLINE INSIGHT

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

Proof of the pudding Criminal injuries Looking after remote Tradecraft: keeping Child maintenance: Some court hearings compensation: the workers: an employer’s the client happy the balance of care converted fairly readily changing scene duties In the last in his series A note from John to remote appearances, Hannah Goldsmith Chris Phillips discusses on “tradecraft” practical Fotheringham on two but how would a personal considers the impact how the changing world of advice, Ashley Swanson tribunal decisions on injury proof fare? Simon on the Criminal Injuries work is likely to impact on highlights some further what constitutes “day to Dempsey relates his Compensation Scheme of the way employers need scenarios he has known day care” for the purposes experience conducting the removal of the “same to carry out their duties to arise in property and other of the Child Support the first such case before roof” rule, and the pending safeguard their employees’ private client work. Maintenance Calculation the ASSPIC. changes in Scotland to the physical and mental health Regulations. need to disclose previous and safety. convictions.

4 / September 2020 OPINION Laura Hutchison Sharon Cowan The provisions designed to protect the right to dignity and privacy of complainers in sexual offences trials are not achieving their aim, and proper evaluation is needed of the reasons why

s we face faster and deeper change in our Because sexual offences are estimated to make up 75% of High society, equality and human rights laws and Court cases, these recent appeals represent only a small fraction standards are more important than ever. As of trials in this area. But it is important to acknowledge that these A Britain’s equality regulator, the Equality & Human concerns about the way sexual history is dealt with during trials Rights Commission (EHRC) is working to create a would not have come to light had there not been reported appeal more equal and rights-respecting society. court decisions. Overall, it is fair to say that there is a lack of The EHRC current strategic plan prioritises work to expose and publicly available information about how the law is being applied in challenge barriers to justice for women and girls who have practice, and that we need more research to understand fully how survived gender-based violence. widespread the problems identified by the High Court really are. In trials involving sexual crimes, complainers are protected in Given these findings, the EHRC is calling for: law from evidence about their sexual history, bad character and • an independent evaluation of how the Crown Office & private information (such as medical history) being used, when Procurator Fiscal Service (COPFS) it is not sufficiently connected to the facts of the case. The law responds to defence applications (found in ss 274 and 275 of the Criminal Procedure (Scotland) to use complainers’ sexual history Act 1995) has been held to be compatible with the European and private information, and how Convention on Human Rights, as it properly balances the rights of it communicates with complainers the accused and the complainer. about such applications. We have However, despite recent efforts by government and criminal also asked that this evaluation justice agencies to increase public confidence in reporting sexual looks at how COPFS complies crimes, conviction rates remain low. In particular, the most recent with its equality duties when statistics show that conviction rates for rape and attempted rape considering applications to cases are 40% lower than for all other crimes. introduce this kind of evidence; Organisations representing survivors of gender-based violence • more systematic collection of have raised concerns about the inappropriate and irrelevant use information about the number and of sexual history and bad character evidence in sexual offences content of applications for the use trials, and the impact this can have on survivors, as well as the of sexual history and other private potential impact on reporting and conviction rates. information (such as medical and To understand more about these issues, the EHRC phone records); commissioned Professor Cowan (co-author of this article) to • a programme of research into review the publicly available literature and cases on the use of what is happening in court; this kind of evidence. • consideration of the benefits The review found evidence of a potential “justice gap” in of introducing state-funded relation to the protection of the dignity and privacy of the independent legal representation complainer, and identified serious concerns about how in hearings about whether to allow effective the legal protections are in practice. sexual history and other private information; and There has been no in-depth review of practice in this area since • clearer rules about the recovery and disclosure of sensitive research, published in 2007, found that only 7% of applications private information. to use sexual history or character evidence were challenged by This level of transparency and scrutiny will help to ensure there the Crown. Figures released in 2016 by the Cabinet Secretary is a clear and fair process for both the complainer and the accused for Justice showed that over a three month period only 10% of in the prosecution of sexual crimes, and increase public confidence applications were opposed. in the criminal justice system. In several recent appeal court cases, the High Court highlighted The EHRC has published a series of research reports based on serious concerns about the use of sexual history and bad character Professor Cowan’s review on its website (equalityhumanrights.com) evidence and the treatment of complainers during rape and and the full review is available on request. sexual offence trials. These included concerns about prosecutors failing to properly contest applications to introduce this kind of evidence before trials, and the failure of prosecutors and judges Laura Hutchison, compliance principal, EHRC Scotland to challenge inadmissible references to sexual history and bad Sharon Cowan, Professor of Feminist and Queer Legal Studies, character during trials. University of Edinburgh School of Law

September 2020 \ 5 CORRESPONDENCE BOOK REVIEWS Haldane UKSC legal aid: an open letter The Forgotten Statesman Who Shaped recently had the By reg 5(3) of the 1989 Regulations, “A Modern Britain career satisfaction solicitor’s fees in relation to proceedings JOHN CAMPBELL to be instructed in the Supreme Court on appeal from the PUBLISHER: HURST PUBLISHERS I in a case before Court of Session... shall be calculated in ISBN: 978-1787383111; PRICE: £30 (E-BOOK £15.07) the UK Supreme accordance with Schedule 3”. Schedule Court, ABC v 3 is the legal aid table of detailed fees. We may know Viscount Haldane (1856-1928) for Principal Reporter It would appear therefore that for his judgments as Lord Chancellor, but he achieved [2020] UKSC 26 (18 June 2020). solicitors there is no provision for an much more. The case involved the rights of application to the UK Supreme Court for Entering politics while a hugely successful relevant persons to attend at children’s additional fees, which seems to me to be barrister, he reformed the pre-1914 Army, was panel proceedings. Eight QCs were most unfair. In my view there should be instrumental in establishing the Royal Flying Corps, instructed in two appeals along with 10 some provision for an uplift in fees from MI5, MI6, the London School of Economics, Imperial junior counsel. My firm acted for one of the lowly solicitors involved in this type College and a series of universities, championed the parents of the children in one case. of cases on legal aid rates. There is such women in the civil service, heavily influenced As there was no conflict of interests, a provision in relation to the Court of Canadian constitutional law and created what became we jointly instructed our junior with the Session and the Sheriff Appeal Court. the Medical Research Council. The list goes on. His agent for the other parent. I am writing by way of an open sumptuous dinners in London and at his beloved The case was heard over two days. letter to both SLAB and the Legal Perthshire home included a roll call of the influential. It involved a great deal of work for Aid Committee at the Law Society of John Campbell’s meticulously researched book all the advocates concerned, and the Scotland. I would hope that this matter contains two complementary parts. The first covers solicitors instructed. can taken forward for the profession Haldane’s background, personality, philosophy and I had expected that an uplift in as a whole, so that at the very least economic and political views; the second his main solicitors’ fees could be applied for from regulations can be put in place to allow activities, in office and no less busily after being unjustly the Scottish Legal Aid Board. It was solicitors to charge on the same basis as forced out in 1915, and how he embodied his guiding therefore extremely disappointing, to say counsel, or alternatively for an uplift to philosophical tenets, always returning to first principles. the least, to find that this is not possible. be made direct from the court. This book is immensely readable and enjoyable. So far as counsel are concerned, the Its historical expositions give context without losing Legal Aid (Scotland (Fees) Regulations Yvonne McKenna, McKennas Law pace. It has much to teach politicians and lawyers 1989, reg 10(2) states: “Counsel’s fees for Practice, Glenrothes on simplifying complexity, collaboration, diplomacy, any work in relation to proceedings in pragmatic idealism and patience. Was Haldane the the Supreme Court... shall be 90% of the Patricia Thom, co-convener of the Law 20th century’s greatest British lawyer? amount of fees which would be allowed Society of Scotland’s Legal Aid Committee, Charles Clark, partner consultant, Linklaters LLP. for that work on a taxation of expenses responds: “Yvonne McKenna highlights For a fuller review see bit.ly/2Z3DrzH between solicitor and client, third party shortcomings that exist in the current paying, if the work done were not legal aid.” system in recognising the complexity and Supreme Court Practice Direction sheer amount of work that is involved for From Our Own 13 indicates the level of remuneration solicitors in preparing such cases. Correspondent which counsel would expect to receive in “We have worked successfully with EDITED BY POLLY HOPE a non-legal aid case, and in terms of reg SLAB to address some issues to help WEIDENFIELD AND NICOLSON: £18.99; 10(2) SLAB would look to make payment ensure timely payments for practitioners E-BOOK £9.99 of 90% of those rates depending on the during the COVID-19 period. However specific factors of the case. In this case, I there are still short and long-term issues “This book is a rich and absorbing understand, fees were sought by seniors that need to be addressed so that we tapestry of writing of the greatest in the region of £35,000 each and for have a justice system that is accessible quality written by those who tell us juniors around £19,000 each, from SLAB. to anyone who needs it – and that means the story behind the headlines.” Our own account was restricted to ensuring that solicitors can afford to take This month’s leisure selection is at bit.ly/2Z3DrzH just over £3,000. on legal aid cases now and in the future.” The book review editor is David J Dickson

BLOG OF THE MONTH rozenberg.substack.com

Veteran commentator Joshua Rozenberg review. Subtitled “Constitutional crisis or has begun a blog about developments in the a waste of time?”, it paints the legal and law. He hopes people will subscribe for a political background, profiling reviewer Lord small monthly fee, bringing alerts for all his Faulks while noting that none of his panel, published output. including Dundee’s Professor Alan Page, Meantime one of his first posts covers “strikes me as a pushover”. the UK Government’s review of judicial To find this blog, go to bit.ly/3547YRI

6 / September 2020 WORLD WIDE WEIRD Unnatural restraints 1 French COVID-19 lockdown rules have important for our wellbeing to let go.” Poor summer not met with conspicuous success After two employees at a Police encountered at a popular naturist resort local hotel tested positive for a penguin – one with a reputation for the virus, a mobile testing wandering around attracting swingers. operation found 30% a Nottinghamshire Business at the southern positive results from 800 village in the early village of Cap d’Agde is naturists tested. hours, and “quickly well down this year, but And when the local moved to question him that hasn’t encouraged prefect shut down many of on what he was doing observance of social the clubs and bars following walking in the middle of the road”. distancing rules – face the outbreak, people moved bit.ly/2ZfRRQX masks and keeping 2m apart to parading themselves round don’t really fit in there. the beach instead. 2 One couple commented, “Sure One problem at least that the Normal we all have been taking risks but the Scottish Government isn’t recorded as politics lockdown was so tough and long it was having to contend with. Vermin Supreme, a PROFILE performance artist who wears a boot on his head and Stuart Munro promises every American a free pony, is running for the US Senate Stuart Munro is head of Criminal Litigation and Inquiries at Livingstone Brown, in Massachusetts. and member of the Society’s Criminal Law and Technology Law Committees bit.ly/3hTk7NO

e Why did you choose SCTS, COPFS and the bar, using 3 to become a solicitor? Microsoft Teams. A strong sense A bridge too far It wasn’t really planned. My of cooperation and goodwill A French woman faces up to three guidance teacher told me – in developed, and I think that years in prison after she made a video a five minute meeting – it was helped speed up reopening. of herself naked on a sacred bridge in either medicine or law. Glasgow A highlight was acting as the India – to promote her bead necklace and Edinburgh rejected me as I Society representative on the jewellery business. was still 16, but I was accepted Lord Justice Clerk’s working bbc.in/3hQGwKU by Strathclyde. Then a friend’s group on resuming solemn trials, dad, a sergeant in the courts which developed the innovative

branch, said he could get me a remote jury model. TECH OF THE MONTH summer job at a criminal defence firm. That placement has lasted u What’s your top Google Pixel Buds 29 years and counting. pdf documents, but it took a tip for new lawyers? £179 pandemic for much of that to I’ll suggest two. First, work r What led you to become routine. hard at becoming part of the As well as acting as earphones, become involved team. Muck in. Try to support this clever creation automatically with the Society? t What have been some your colleagues. Make yourself adjusts the volume as you move I’ve always had an interest in of the key challenges invaluable because of your between quiet and noisy situations technology, and that led me through the outbreak? efforts. Secondly, think about (this requires Android 6.0 or to the Technology Committee. It was very soon apparent that what you can offer that’s higher, though the buds pair It tried its best to advocate complete shutdown of the courts different. with any Bluetooth 4.0+ device). for sensible change in the wasn’t sustainable. We quickly www.store.google. justice system, like email initiated various working parties, Go to bit.ly/2Z3DrzH com/gb/ communication and lodging securing participation from for the full interview product/ pixel_buds

September 2020 \ 7 PRESIDENT Amanda Millar The need to meet virtually is enabling me to get round all our constituencies – very valuable in helping us respond to proposals, such as from SCTS, or when professional standards need to be defended from Government attack

… I am a year older, 25 years out of It has given me a wonderful opportunity to get on-the-ground university, but apparently now only an engagement across the country early in my year as President, activist. I thought being a lawyer, and so hopefully will aid my ability to add greater value to the representing clients within the bounds profession and the public we serve. I look forward to seeing many of the law, giving advice without fear or more of you in the coming weeks – if not at a constituency visit, favour was simply the joy and perhaps at our Law and Technology Conference or the New Partner So responsibility that came with being a Practice Management Course: see the CPD section of the website. member of this profession that is a Notwithstanding all the current challenges, in order to maintain fundamental pillar of civil society. a viable, sustainable profession that reflects the society it serves But apparently not. Applying the law, representing clients within we must continue to look to the future. Last month I told you about it (often some of the most vulnerable and voiceless people in our (entirely online for the first time) summer school programme. society), bringing challenge and testing the evidence had at least This month our award-winning public legal education programme one Government department calling those taking such actions Street Law, which had to be paused in March due to the COVID-19 “activist lawyers”. So I am an activist, and I stand with all my outbreak, was reawakened by the determined and talented Careers professional colleagues who are not “complacent about our human & Outreach team, who have rights and the need to preserve the pillars of our profession that trained 40 street lawyers from contribute to the democratic and civil rights that we hold dear: The across Scotland’s universities independence of the rule of law, our responsibility as solicitors to virtually in recent weeks. provide advice without fear or favour, the right to be tried by a jury Street Law has a great of your peers for the most serious offences” (last month’s article). impact on the school pupils We will and must maintain our professional standards in the we work with, but is also a real interest of our hard-earned reputations and in the greater interest opportunity for law students to of society. learn some teaching methods SCTS issued a plan entitled COVID-19: Respond, Recover and and give back to Scottish Renew in mid-August. Both the Lord President and the CEO of education. The Street Law year SCTS have confirmed that this should form part of a consultation will commence next month with with the profession, and nothing within it has been decided. I am law students teaching pupils also aware that SCTS’s view of how the courts are operating from virtually. Massive thanks to all a national viewpoint is not mirrored in local experiences. From the volunteers who helped us members’ social media activity alone, it is clear there are strong deliver the training and to our views on these and I encourage all with direct current experiences sponsors, Pinsent Masons. and anyone with a constructive view on the plan to share them Before signing off, I want with us via [email protected]. I will be writing about local to congratulate the Society’s issues we are told of directly to the relevant sheriffs principal, chief executive Lorna Jack who has been appointed to one of the keeping the Lord President informed as requested. I am equally Department for International Trade’s new trade advisory groups happy to copy in relevant faculty leaders and receive local faculty to represent the Scottish legal sector. I know Lorna will do a communication if that is thought helpful. My aim is for collective, tremendous job in representing the profession. effective and collaborative communication. You can read more on Stay safe. Take care of yourselves (check the Lawscot Wellbeing the Society’s website (Law Society news section, 20 August 2020). page), your colleagues, loved ones and of course keep doing what you do for your clients. Value yourselves, your work and IT means engagement your professionalism. I have been travelling the country via the magic of technology, Until next month, if I don’t see you before. meeting members and Faculty leaders to discuss the challenges of working in a slow release from lockdown environment. I will meet more of you over the coming month and hope to meet every constituency before the end of October – if not a unique feat, then Amanda Millar is President of the Law Society of Scotland – certainly something not done by a President in my Council lifetime. [email protected] Twitter: @amanda_millar

8 / September 2020 Intimations for the People section should be sent to [email protected] To advertise here, contact Elliot Whitehead on 0131 561 0021; People on the move [email protected]

LINDSAYS, Edinburgh, Dundee and MITCHELLS ROBERTON LTD, Glasgow, is delighted to announce Glasgow, are pleased to the appointment of Caroline announce the appointment Fraser as partner with effect as directors (partners) of their from 1 September 2020. Caroline associates Allyson Gilchrist, will join the firm’s Private Client Laura Schiavone and Heather department and be based in the Warnock (all Private Client), firm’s Dundee office at Seabraes and Joyce Moss (Commercial House, Greenmarket. Property), with effect from 1 September 2020. MACNABS, Perth, Blairgowrie, Pitlochry and Auchterarder, has MOIR & SWEENEY LITIGATION announced the promotion to announces the opening of a new partner of Alan Roughead, head of branch office at 879 Govan Road, Private Client, and Stewart Baillie, Glasgow G51 3DL (t: 0141 429 director of Property. 2724). Burness Paull (clockwise from top left): Hazel Moffat, David Davidson, Dawn Reoch, Ashley Mawby MACROBERTS, Glasgow, Wing Commander Allan BURNESS PAULL, Edinburgh, GIBSON KERR, Edinburgh, Edinburgh and Dundee, has R M Steele WS RAF (retd) Glasgow and Aberdeen, has is pleased to announce the announced the following has opened ARMS LEGAL appointed four new partners: appointment of Beverley Cottrell promotions: to senior associate, SERVICES WS, a boutique legal Hazel Moffat, previously at DLA as its head of Property. Beverley Susan Murray and Michael practice dedicated to serving PIPER, will lead a new Public was previously with MOV8. Vaughan; to associate, Rebecca the needs of members of Law & Regulatory division; David Cox and Melissa Hall; to senior the Armed Forces, based at Davidson (corporate and private GILSON GRAY, solicitor, Suzanna Brown, Rebecca 22 Forres Avenue, Giffnock, equity), who arrives from CMS; Glasgow, Henderson, Amanda Hodge, Glasgow G46 6LQ (t: 07954 Dawn Reoch (banking and finance), Edinburgh, Meghan Jenkins, Alisha Malik, 188167; e: allanrmsteele@ who also moves from CMS; and Dundee and © Derek Rhea McKenzie and Hannah Ward; armslegalservices.co.uk). Ashley Mawby (professional North Berwick, Gerrard and to senior marketing executive, liability disputes), who joins has appointed Jennifer Gibson. The firm has also CHARLES WOOD & SON, from BTO. property and private client lawyer appointed Emma Aitken, Charlotte Kirkcaldy has appointed Lindsay Darroch as partner and Fleming, Rachel Gillan, Martin Fraser Tait, who joins from BTO, DALLAS McMILLAN, solicitors, head of the firm’s Dundee office. He Kotsev, Fergus Lawrie, Chris Edinburgh, as a private client Glasgow have appointed Rosslyn joins from ABERDEIN CONSIDINE, Murphy, Laura Roddy and Conor solicitor, and Milligan as a senior associate where he was a partner. Whittaker as solicitors on the Dionne Brady as a solicitor in in the firm’s Private Client team. completion of their traineeships. its Civil Court department on Rosslyn joins the firm from HARPER MACLEOD, Glasgow and completion of her traineeship THE McKINSTRY COMPANY in elsewhere has appointed Charles McSHERRY HALLIDAY LLP, with the firm. Ayr. Dallas McMillan have also Brown as a partner in the Family Irvine, Troon and Kilmarnock, employed three first year trainees, Law team, based in Glasgow. are delighted to announce the WATT LAW SOLICITORS has Kirsty Adams, Erin Doherty and He was previously head of promotion of Louisa E Doole to opened an office at 3 Leven Way, Liam McKay. The firm further Family Law at MILLER SAMUEL associate with effect from Town Centre, Cumbernauld G67 intimate that Terence Docherty HILL BROWN. 1 September 2020. 1DY (t: 01236 787030). left the partnership on 28 August 2020. LANARKSHIRE COMMUNITY LAW CENTRE has appointed DAVIDSON CHALMERS STEWART immigration solicitor Filip LLP, Edinburgh and Glasgow, Angelov to join its EU Citizens has appointed as an associate Support Project. Steven McAllister, who joins from RENEWABLE ENERGY SYSTEMS, LAW AT WORK, Glasgow and and as a senior solicitor Chala elsewhere, has promoted Heather McKenna, who joins from SEPA. Maclean to senior associate Both will be based in the firm’s and head of its knowledge Glasgow office. development function; and Paman Singh to principal DUNDEE NORTH LAW CENTRE litigation solicitor. announces the retirement of Peter Kinghorn, principal solicitor, who LEGAL SERVICES AGENCY, helped found the centre in 1994. Glasgow, announces the His successor as principal solicitor retirement of Ronald Franks, is Joyce Horsman, who joins from partner and head of Mental Health Mitchells Roberton (l to r): Heather Warnock, Joyce Moss, Laura Schiavone FIFE LAW CENTRE. Legal Representation Projects. and Allyson Gilchrist

September 2020 \ 9 IN ASSOCIATION WITH DENOVO

Denovo joins forces with Amiqus Integration will save time, reduce risk and speed up client onboarding

cotland’s only whole practice management software provider has teamed up with Amiqus ID as part of the global S fight against money laundering, identity fraud and terrorism financing. The new integration will save law firms up and down the country time and money by turning hours of paperwork into minutes of secure online compliance checks. Amiqus has grown to be recognised as a trusted and secure online point of access for legal support. Their aim is to always improve in line with regulatory changes, making it simpler for legal professionals to comply with the latest data privacy standards, while improving processes for your clients and staff. Amiqus CEO, Callum Murray, said about the recent partnership: “We’ve built a world class AML compliance product as a first step towards supporting legal firms into new ways of working. The Denovo integration means legal firms can spend less time doing their compliance admin and more time doing what they do best: providing on areas of weakness and setting out a plan to Amiqus ID makes it easy for you to meet the a great service to their clients.” increase the frequency and intensity of AML and standards set with checks such as: KYC inspections. • Identity checks 80% of law firms find AML and We’re at a point now where meeting these • Credit reports KYC challenging – how can you standards is the only way to maintain the ideals of • Photo ID verification make it easier? regulatory best practice within the legal profession. • Basic disclosures Legal firms everywhere need to review their Steven Hill, Denovo’s Operations Director, • Companies lookup practices to ensure they remain compliant added: “There is an obvious synergy between • Remote client onboarding with increasingly stringent regulations. Ideally, both organisations who are working towards a • Watch list (PEPs, sanctions and adverse media) systems and processes should be put in place vision of removing all unnecessary manual tasks Mark McBride, Director at Wallace Quinn that enable you to verify the identity of clients, in the daily working life of legal practitioners. Solicitors & Estate Agents in Glasgow, was an and ensure they understand the true nature “Moving from your current compliance process early adopter of Amiqus ID. He had this to say and purpose of the business relationships they to a new, online system can be a daunting task. about the importance of the integration with his engage in. Make it easier to meet regulatory Along with Amiqus’s award-winning team we Denovo practice management software: “Using requirements for AML by bringing your client and have built support networks to help you with a solution that is respected and approved by the staff compliance checks and onboarding into one this – whether that’s making sure it’s simple for Law Society helps to give confidence that our secure online account. staff to move away from paper-based processes, business and reputation is adequately protected Conducting these due diligence checks quickly answering day-to-day technical from financial crime risk. The integration enables you to take a risk-based approach and or regulatory questions, or ensuring costs has helped us a lot. Being able to run the ID avoids exposing your firm to any potentially are transparent. checks via the files and then saving them in damaging circumstances. “Working collaboratively with our case automatically when approved has been a really management software, Amiqus seamlessly good addition.” How can Denovo and Amiqus help? integrates workflows, digital risk assessments, HM Treasury and the National Crime Agency internal decision-making audits and client data To find out more about the integration between in the latest National Risk Assessment clearly with CaseLoad. All the data is stored in one place, Amiqus and Denovo and how it can streamline define the legal sector as being at high risk of so there’s no need for duplication. You’ll save your working processes and protect your firm, money laundering. Therefore, the regulators and yourself time and can be assured that you’re visit www.denovobi.com, call 0141 331 5290 the Law Society of Scotland are clamping down being consistent and secure.” or email [email protected]

10 / September 2020

REMOTE WORKING

Soft skills for a harder world COVID-19 and its impact on office work should be seen as one of the periodic key moments in human evolution, Stephen Vallance believes – but how do we still need to adapt to deal with the issues that have been thrown up?

a challenge to write a 9/11 and the millennium, in the same way have a look at www.mmhmm.app. piece like this without that remote working has been growing As for our websites and social media repeating a multitude of since the 1980s when IBM let its first five presence, no one reading this will need to It’s platitudes about the employees work from home, and growing be persuaded of the power of the internet current situation. Every rapidly since the early 2000s. COVID-19 when it comes to clients choosing their once in a while, has, though, catapulted homeworking preferred legal partner. Under lockdown something happens that changes the forward by at least a decade, and many are we have all become conditioned to world in a way that wasn’t imagined and now attempting to catch up. purchasing whatever we need, whenever cannot be reversed. Recent examples Few would argue that remote working we need it, online. Even when we have include 9/11 and its effects on air travel, in is not here to stay and, in this piece, a preferred supplier, most will now particular security. Most of us now have I’m going to cover four key areas that at least price-check the competition probably forgotten the more relaxed it impacts. Most will be things you are before committing. But how many firms travel of the past, before queues for already aware of; however, I’d like to look have a clear system and methodology scanners and baggage searches. a little further at some of the issues we for attracting new clients and, more Likewise, the Y2K bug pushed us from our as a profession are still dealing with. importantly, for engaging with clients Unix-based office computers to desktop after they contact us, with follow-ups to PCs, and from there on to the cloud. Life online: our digital selves ensure that we maximise the opportunity The list in many ways reflects human A good friend of mine laughed when I from each new enquiry? evolution: challenges, change and then told him about all the benefits of Zoom From the many firms I speak to adaptation to a new norm. COVID-19 has and Teams. He has been using such there is a clear conflict for fee earners been another of those moments. tools for 10 years or more, in growing between already high workloads and What is interesting is that none of them his software business internationally. time to follow up on enquiries. That in themselves brought about changes in In that time he has developed a deep follow-up and engagement, though, are technology. They accelerated a change in understanding of how to make an impact a process, and like most processes can mindset which encouraged people to adopt with clients he may never meet. be structured and ideally delegated or technologies already in existence. Security Most legal firms over recent automated as in many other industries. In systems and PCs existed long before months will have developed a basic this digital age, any lack of follow-up is like understanding of good virtual meeting leaving a large hole in your fishing net. etiquette. A few will even have invested in essential items to enhance the Remote working: experience (good lighting, cameras, problem or solution? and broadband for a start). Are we Things are seldom black or white, and yet, however, comfortable with all the remote working, I suspect, is potentially facilities these services offer? Have we both. Most firms appear to have found invested in the “pro” version, and perhaps few issues with staff working from home, more importantly, in training all our staff often discovering that productivity has in best practice? In the same way that increased as a consequence. Several are our receptionist so often gives the first already looking at downsizing their real impression of our business, what first world footprint, anticipating a reduced impression do we now give when requirement for office space. Amongst meeting online? It takes only seconds additional benefits has been, for some, an to make a first impression, but it can almost instant evolution to a paperless take a long time to overcome wrong office, the quest for many firms over the ones. What do new clients think years. As one practitioner told me he has when they first meet you or your firm learned, one office-based person is able online? Have you asked them? For those to scan all correspondence and forward it looking to make a real impact, perhaps to those working remotely.

12 / September 2020 In conversations about staff working “Don’t forget to diarise scanners etc. Likewise, Zoom and Teams remotely the responses are mixed. Many meetings save a lot of travel time, but who craved the flexibility now appear reminders to check in with somehow leave me feeling more drained keen to return to a more defined work colleagues regularly” than a “normal” meeting would. Moving day. While some have grasped it fully, forward, and with a little investment, I suspect many firms will develop a all of these should become easier as blended approach. Likewise we have yet questions. Inviting new members of staff firms adopt better IT systems, perhaps to see the full extent of issues around to client Zoom meetings might also help. encompassing a more blended solution, furlough and the tensions that will arise, As the coffee break catchups no longer with days in and out of the office. as those returning and those who worked exist, don’t forget to diarise reminders On the subject of blended working through lockdown come to terms with to check in with colleagues regularly, (which I believe will be the route most their respective lots. particularly when there is a proof or firms take), give some thought as to how Under furlough the staff working large transaction pending. For new that might work for you. Hotdesking remotely will generally have been among members of staff, file reviews remain key. does not come without its issues: people the most experienced, familiar with the A practitioner reminded me recently that are territorial and can become very office systems and trusted to use them second year trainees are less of a worry, attached to “their” desk. Most high street appropriately, so the practical issues as by then you have a good grasp of their offices are not set up to accommodate appear to have been few. This will not abilities. Qualified solicitors new to the staff moving freely between desks, and always be the case and, particularly firm can be more of a challenge, as you it would seem an opportunity lost if as new staff are introduced, it will be can’t assume their levels of ability. blended working simply meant different important to consider how they are Remember also that emails and other desks lying empty depending on the day integrated into an office’s culture and written communications for teaching/ of the week. Are firms, though, prepared systems. Previously they would been review purposes are, compared with real to deal with all the issues around clear around more experienced staff, listening time conversations, slow and clumsy and desk policies to facilitate real hotdesking? to their style and tone and able to ask prone to misunderstanding. Scheduling questions. Often our paralegals have real time meetings for these purposes The caring profession been the first port of call, being easier wherever possible remains essential. One of the great unspoken tragedies to get hold of, and less embarrassing to Both practitioners and staff can, at of lockdown has been the sharp rise ask than admitting any knowledge gaps times, find the technology challenging. in issues around mental health. As a to partners. While I very much prefer the commute to profession we are not immune, and many All the above can be addressed, with my home office, nothing compares with I have spoken to over recent weeks have some thought. Many firms already have the speed and ease of use of my office indicated that working with limited a WhatsApp group for teams to ask computer with its access to printers, human interaction has left them

September 2020 \ 13 REMOTE WORKING

feeling, at best, low at times. Further, for many firms experiencing high levels of demand for services but with staff still furloughed, much of the strain is being borne by principals and senior colleagues, which exacerbates the problem. While we are indeed a caring profession, that care tends to focus outwards towards clients, whose needs are often placed before our own. No single answer exists, but there are perhaps a few things for each of us to consider: • Work can by its nature become all- consuming. We all need time out, and we need it most when we believe we don’t have any time to take it. Whether it’s going for a walk, doing the garden or just chatting to a loved one about anything except work, take time every day just for you. • Following from that, I was once given this wise advice: “At a certain stage in your career the last thing you need is additional income: what you need is to build in longevity.” Learn to say no, whether to clients or colleagues, when the only way to get something done is by you taking on yet another matter. The trust equation (T = C+R+I/S) we have been involved with. Reliability • Remember that remote working I have, for many years, been fascinated is our ability to get the job done, and it’s brings with it access to a huge range of by the impact we as solicitors have on our why client testimonials and sites like resources. Whether it’s a referral and clients. They return to us again and again, Trust Pilot are so important. I know that support network like HM Connect, or sometimes with years in between and I seldom purchase without checking the an outsourced cashroom, compliance with little or no communication from us in reviews. Intimacy is the personal touch, or even sales and marketing, is there a the interim. The internet has been eroding the ability to give an appropriate amount solution out there that can help? that, as I touched on above, but generally of information about yourself as a person. • Build a support network. Sometimes only in relation to new purchasers of legal People buy people, I was always told, and these might be networking groups, services or those whose expectations being able to share a little about who you university colleagues or, for myself, a were not fully met the last time. When are helps. breakfast club of legal business owners remote meetings become the norm Lastly, if you do all of these well, that meets once a month. All can be ideal rather than the exception, will there be an demonstrate where and when you can places to discuss general business issues erosion of the solicitor/client relationship? that your only interest is in the client. and, as importantly, to hear that others During lockdown many of us will have Don’t be afraid to give a little knowledge have similar issues and challenges. been transacting work for clients already or to share useful information, even when • Remember LawCare (www.lawcare. known to us, and Zoom meetings are you think there is little chance of securing org.uk/information-and-support), and ideal in many ways for keeping in touch the client. You will have built up real trust, don’t be afraid to contact them. and progressing work. The relationship and that still goes a very long way when Business owners and managers also is already there and simply needs to be clients look to make the final decision need to be more aware than ever of the maintained. New clients may be more of about who to instruct. need to really listen to staff. A simple a challenge, as the more subtle human “How are you?” is no longer enough. interactions just aren’t there and it can In conclusion Lack of person-to-person contact can be much harder to create a relationship In case you hadn’t already realised, what mask a lot of personal issues with and, more importantly, build trust by we are experiencing is just a part of the colleagues, and we need to remove any videoconference. cycle of business. These changes have barriers around staff being able, openly There are steps to building been going on for ever and will continue and without fear, to discuss any fears, relationships and trust. Most of us do it to do so. Like every change, it brings concerns or issues, particularly when automatically, but there is a formula for it threats and opportunities and there will working remotely. Firms are different, Stephen Vallance which is worth considering for a moment. be winners and losers. Our profession so so no one size fits all, but a mixture of works with HM Generally trust is built by credibility, far has proven itself, I believe, to be robust team and one-to-one meetings online Connect, the reliability and intimacy. Credibility is our and more than up to the challenge. The referral and is a minimum and, if blended working support network reputation and expertise; it’s why we look question now is how each of us embraces allows, regular face-to-face meetings operated by to become accredited or seek awards or the opportunities ahead and surmounts where possible. Harper Macleod (with clients’ consent) publicise cases the challenges that they bring.

14 / September 2020 LEGAL TECHNOLOGISTS

A specialism of many angles

Accredited legal technologist? Isn’t that for backroom IT staff? Much more than that, as Peter Nicholson discovered on speaking to the diverse group now awarded the Society’s recently recognised specialism

hat exactly is a legal Steve Dalgleish at Shepherd & innovative technology-based solutions to technologist? Probably Wedderburn, a non-lawyer who began combatting fraudulent behaviour, and her the picture that most in digital marketing before moving accreditation was based on her developing W readily comes to mind across to IT, which he now heads, paints case management systems to improve is the IT expert in a big a similar picture. The firm’s Smarter efficiency, on process mapping and firm, working to Working team, which he co-manages, alignment with service level agreements, streamline systems and probably also on covers both internal and external angles, and on assisting insurer clients to develop cutting-edge support for major clients. with bespoke solutions for clients pre-litigation strategies using both DWF’s That is possible. But the profiles of the supporting legal process for volume and clients’ own technology solutions to first six to have gained the Law Society transactions: “We’ve done quite a lot allow claims to be routed more efficiently. of Scotland’s specialist accreditation in of work with some large clients, to dig For Rob Aberdein, CEO at Aberdeins, the role present a much more diverse down into common transaction types his very mission in investing in picture, showing it to be a string that a and figure out what the touchpoints are, technology is to attract business. Indeed good few solicitors, and others, could how they could be made easier, and he sees himself as a potential disruptor add to their bow. improve the flow of data between us and in the way that Elon Musk is shaking up To date, as well as two who might the client, and their clients.” the car industry, and his firm’s progress match the initial idea – one a solicitor Jill Sinclair, DWF partner and head in IT as a constant quest to stay one jump and one not – we have a solicitor in a of Counter-fraud in Scotland, takes ahead of the competition. (Below) specialist team who integrates team IT such engagement further. Her team Jill Sinclair; “It’s to make it a journey that with that of clients; the head of IT in a has won a series of awards based on Steve Dalgleish customers buy into,” he affirms. “If they support services company; the head of look at 10 law firms I want mine to be the a practice whose vision is competitive one they choose because they think they advantage through IT-led customer will have a better customer experience. It service; and the founder of a niche will be easier, simpler, more commercial. practice who speaks the language of his I think all consumers nowadays are tech-focused client base. looking for ways for companies to deliver a better customer experience, and that is Not just backroom staff our DNA, that’s the spirit of what we are A notable feature, common to some trying to build.” degree to all six, is the extent to which Alan Stuart, who left the partnership their work not only enhances their at Morisons seven years ago to start his businesses’ own IT, but directly assists own specialist technology practice, uses clients as well. his expertise to take a “deep dive” into Such is the experience of Sam Moore, his clients’ technology, in order to advise innovation manager at Burness Paull on how it interfaces with the law, with and the first to achieve the accreditation. GDPR, with cybersecurity, and in order to His input can range, he explains, from an draft terms of use. He is also a business informal discussion of a specific process, to matchmaker. With a 400-strong customer more direct input such as assisting during base of technical specialists, “we give a a vendor demonstration, or temporarily lot of technology advice because we have joining a project team: “We’ve found so many technology customers that we that many clients value the input of an introduce them to one another”. experienced legal technologist if they don’t Completing the roll call, Andre Boyle, have one on-staff, and being accredited by Head of IT at Millar & Bryce, is the only the Law Society of Scotland adds an extra accredited specialist to date not to level of assurance around that expertise.” work for a legal practice. For him,

September 2020 \ 15 LEGAL TECHNOLOGISTS

the focus is on building what the business needs in order to support customers. “What I find though is that we can’t move forward the way we need to without really listening to and getting feedback from our customers, so it quite often involves sitting with them, understanding the processes and challenges they have and trying to make their life easier.”

Some are born to it... Do these portraits show that to become an accredited legal technologist, you have to have been more or less weaned on IT? Not necessarily. Certainly Stuart used to “build and mess about with” computers with his scientist father; Aberdein “was one of these kids who had a ZX Spectrum when I was about eight years old... my house is a bit like Starship Enterprise”; and Moore’s first passion was computer science. Sinclair however just happened to find herself working with, and appreciating the potential of, case management systems at an early stage in her career. Aberdein offers the observation that since COVID-19: “I’ve seen people who would typically not be adopters of technology, become evangelical about WhatsApp and other applications that have enabled them to continue a normal existence while in lockdown, so we’ve almost had a turbocharging of a certain generation who were averse to consuming legal services in a progressive technology-led way, to saying I’d actually prefer to do that.” It would be wrong, then, to divide the profession permanently into those who are naturally at home with IT and those who more or less need spoon fed to take it up. “We’ve had a turbocharging of a generation As Dalgleish puts it: “We’re finding a lot less resistance to who were averse to consuming legal services engaging with technology now than we did even six months ago. Some people will struggle, but I think it’s very much the in a progressive technology-led way, to minority now. People are realising that technology is here saying I’d actually prefer to do that” to stay and if we don’t do it, others will; that it has potential to make their life better, to allow them to do the proper legal work where the value is added, and to make it more interesting (Above) technology simply blends into the background”. Whereas in for them. It takes away a lot of the more routine tasks.” Sam Moore the past it often created extra admin, as people took data from Moore takes up the theme, pointing to further potential (Below) documents supplied and entered it into their own systems, he for automation of “those more routine areas of practice, such Rob Aberdein is now seeking to save time, for both fee earners and backup as information gathering at the start of a transaction, where staff, by “ensuring that every interaction a firm has with our lawyers perhaps don’t need to be so hands-on. Streamlining systems through their processes is light touch, so that they the information gathering element of most transactions would can be as efficient as possible”. be an easy way to start using technology”. He explains: “Knowing as I do the deep level of data focus Burness Paull, he adds, has found that automated systems that lawyers have, we are looking at providing data rather than have the potential to save upwards of 50% on repetitive tasks. documents. It means that we can enable processes within “The trick is picking the right tool for the best use cases, and legal firms to move forward automatically rather than depend recognising that sometimes a simple solution is preferable to a on human intervention, enabling members to use their intellect sophisticated one.” to focus on the work that they do rather than admin. Sometimes, indeed, it can allow you to carry out tasks that “One of my longstanding goals in working [for three legal you otherwise couldn’t or wouldn’t do at all. An AI (artificial firms before he joined Millar & Bryce] has been to reduce the intelligence) tool enabled the firm to carry out a mass review admin overload that takes people away from doing the really of 30,000 near-identical forms to extract one key piece of incredible legal work they do. Where we now want to get to information from each (or record if it wasn’t found). What is to reduce the effort required to get the search data needed might have taken 150-160 working hours to do manually, and, in time, not to have to enter it into their systems as well.” was completed in an afternoon, using AI to identify the data required and extract it into a template, “with a Applications welcome high degree of confidence in the resulting data”. Who should seek the accreditation? For most of our interviewees, it is something that enhances client (or Blending in customer) trust and confidence, especially as it As a slight digression, much of the specialists’ carries the cachet of recognition by the Society. mission now is to make systems ever easier to use. Stuart suggests that anyone involved in For Boyle, the goal is “to get to the point where technology, whether immersed in how their

16 / September 2020 own organisation is functioning or in a more client facing role, should consider doing so: “The technologist has to bridge the gap between law and technology in order to be able to best advise the client about their products and about how their Mapping the customer journey technology interfaces with the law. We have to do a deep dive into each of our clients’ pieces of technology, have maybe An unexpected feature of the interviews was that days learning about it at a granular level before we start trying more than one of our accredited legal technologists to draft contracts for its use.” prefers to speak of customers rather than clients. Sinclair observes that technology impacts on every sector, It is understandable with Andre Boyle at services has become increasingly important over recent months, company Millar & Bryce, but both Alan Stuart and and the more people who are aware of what it can offer Rob Aberdein, as leaders of smaller legal practices, their practice area, to drive efficiencies and deliver better think the same way. client service, the better for the profession. “The team of “They’re called customers because we think that’s legal technologist accredited specialists have a very diverse what they are,” says Stuart. “We think of customer background and I would recommend that anyone with an relations rather than clients – customer development, interest in technology solutions and experience in this area customer retention, and so on.” His firm has low should consider applying, even if it is not the main focus of overheads – everyone has always worked from their role.” home – and as many customers pay by retainer as by Dalgleish focuses on those in a support role. “Accreditation transaction. “They like that because they don’t think gives confidence to the legal teams that the technology side is the meter is running when they speak to us and they well understood, and that appropriate thought has gone into know they can put in their budget what their legal ensuring a correct workflow, providing a positive experience costs are going to be.” for clients and colleagues and delivering commercial benefits Rob Aberdein also thinks in terms of providing to both... There are people in my team who maybe don’t “a better customer journey”. “It’s something I guess have the external profile but they are absolutely capable from my banking litigation background. Nowadays of being leaders. It could encourage those up and coming everybody the bank has lent money to becomes a team members to get accreditation as a possible route to customer; it just has more positive connotations than career development.” ‘borrower’, and it sounds more progressive. With legal Boyle too would like to see more IT people in legal firms services, I like it because it focuses the minds of the become certified, “to help demonstrate to the fee earners team, it’s about thinking customer service, customer that there is a deeper level of understanding of business journeys. Sometimes lawyers, and I think most of processes in IT departments, that it’s not just support the profession would admit it, are quite bad about provision. IT departments can provide consulting services as forgetting that. We’re smart, typically quite academic, well”. In addition: “I’d really like to see suppliers and vendors we ended up in a profession and make our living with get on board. I’m obviously pleased as Punch to be the first our brains. Sometimes we forget it’s ultimately about accredited legal technologist outside a legal firm; I appreciate (Below) the customer, in my view, and that’s why I think of I came from a legal firm background but I think it’s a great first Andre Boyle customers as opposed to clients.” step to get others involved.” Moore identifies certain qualities for the role. First of all, attention to detail remains crucial, to understand what is going on, and recognise potential issues. “This is a timeless requirement for a lawyer, and I don’t think that will ever change.” The second is strong project management skills, to be able to break down workstreams into smaller deliverables, and plan work accordingly. Third, perhaps more novel, is curiosity. “I think this quality is more important now than it has been in the past, as the modern lawyer needs to be more curious about the way things work”: in understanding their client’s business, and also what is coming down the technology pipeline which will change both their own business and their client’s. “Being willing to question the status quo and being open to new ideas is fast becoming an essential skill for the modern lawyer who wants to embrace legal technology.” Aberdein puts it pithily: “I now have a bunch of peers and a marketing opportunity, and some sort of validation that everything I’ve been doing the last 10 years isn’t madness basically.”

For more information on the accredited legal technologist specialism, go to bit.ly/LSStechAccred

September 2020 \ 17 EMPLOYEE OWNERSHIP

EOTs: the post-COVID succession solution? To mark its new series of webinars for business owners and professional advisers on employee ownership trusts, Co-operative Development Scotland highlights the latest evidence of EOTs’ growing popularity, and their resilience in difficult times

cotland continues to “Another factor in Scotland’s A 2012 study carried out by the Cass set the pace for Business School at City University London transitions to success in growing employee found that employee-owned companies employee ownership, ownership is undoubtedly the experienced a less negative impact from S and this impetus the 2008 recession than their peers of shows no sign of enthusiasm among our adviser similar size and sector. The study also found slowing down. community” that employee-owned companies were What is the reason for this, and why are more likely to maintain their employment we forecasting a significant boost to the levels and were thus able to bounce number of Scottish-based employee-owned back more quickly. This is supported by a businesses post-COVID-19? continuity of longstanding relationships recent survey undertaken with a sample of The recent report on employee for both customers and suppliers can be a Scotland’s employee-owned businesses, ownership in the UK, published by the convincing consideration. which found that 76% of respondents White Rose Centre for Employee Ownership Another factor in Scotland’s success believed the company’s employee-owned based at the University of York, found that in growing employee ownership is status was helping them through the the number of employee-owned businesses undoubtedly the enthusiasm among our COVID-19 crisis. With talk of second waves has increased by 100 in the past year. adviser community. The 2012 Nuttall and the threat of further local lockdowns, Scotland was second only to London in the Review identified a lack of awareness as well as a vaccine potentially being years number of employee ownership transitions: amongst advisers at a UK level as being away, the employee ownership model may quite remarkable when you consider a key challenge to increasing the number offer some stability and security that is the difference in the London and of employee-owned companies. However, missing from ownership structures reliant Scottish economies. Graeme Nuttall himself remarked how on individuals. encouraged he was to see such high Despite the impact of COVID-19 on the Scotland: fertile soil levels of interest in Scotland from lawyers, economy, CDS has seen eight transactions If everyone agrees employee ownership is accountants and bankers in building their this year, and an increasing number of so good for the economy, why is Scotland knowledge of the model. A number of companies have been expressing interest forging ahead? Scotland is an SME Scottish firms have built significant expertise in exploring whether employee ownership economy and the employee ownership trust in employee ownership trusts within their might be the right plan for them. The EOT (EOT), the most common vehicle used to corporate and commercial teams. isn’t the best solution for every company, transition to an employee ownership model, The key factor that differentiates but it should certainly be on the table when is arguably a good fit for the small business. Scotland from the rest of the UK, though, succession options are being discussed. Of course, the tax incentive may play a is dedicated support for employee part. If a business owner sells a controlling ownership from the Scottish Government. interest in their business to an EOT, that Co-operative Development Scotland (CDS), transaction is exempt from capital gains tax. as the specialist unit working on behalf of In my experience, the tax benefits are Scotland’s three economic development not a key driver for business owners agencies, delivers expert business support considering employee ownership. It’s across the country. Our experienced team loyalty to the workforce, commitment to provides free advice and guidance to maintaining the business in the local area business owners looking to explore the and a reluctance to sever all ties with the model, and signposts to experienced advisers business that are more likely to be the to assist the business transfer process. To find out more about the EOT transaction, prime motivators for a business owner Glen Dott, Co-operative Development Scotland is to consider employee ownership as a Surviving the storm specialist hosting a series of webinars for professional adviser, succession option. In these uncertain times, employee-owned Co-operative advisers and business owners exploring the The business owner as seller is able businesses demonstrate a good track Development employee ownership trust as a succession to manage the pace of exit, and the record of resilience during recession. Scotland solution. Find out more here: bit.ly/3h8wh4u

18 / September 2020 Positive impact Aspire is a Glasgow based company that provides support to those who need it: homelessness, addiction issues, refugees, care leavers and the elderly and vulnerable. Aspire founder, Peter Millar, was attracted to the employee ownership ethos and looked to employee ownership as a means to exit while maintaining and protecting the company’s strong culture and values. Aspire became employee-owned in June 2019, with Peter retiring as managing director in February 2020, although he has remained as chair of the board of directors and as a trustee. Campbell Clark and Sarah Winter of Blackadders provided legal advice on the Developing competent management transaction. Sarah Winter said: “Aspire is an excellent company that makes a Mediascape is Scotland’s leading independent Bruce Farquhar and Ewan Regan of positive impact on society. The move audiovisual expert, with customers that range Anderson Strathern were the legal advisers to employee ownership reinforced the from universities and heritage sites to corporate to Mediascape. Bruce Farquhar is enthusiastic company’s values and gives employees businesses. The company was founded in about the EOT as a succession solution. “The real ownership. Employee ownership 2003 by husband and wife team Angus and EOT can be ideal for the business owner who allowed Peter to retire knowing his Shona Knight. They were planning retirement is looking to realise the value in the business, company was in safe hands.” but were concerned that a sale would result and ensure the company remains in a stable in relocation of the business, with a negative ownership model. Angus and Shona were not impact on the loyal employee group. They read quite ready to retire, and the move to employee of a similar business that had adopted the EOT ownership enabled them to phase an exit model successfully and invested some time in that allowed the development of a competent exploring the option, including meeting with management team, and the appointment of a several business owners who had taken the new managing director to take over from Angus. same path. Their EOT transaction completed in These deals are enjoyable to work on: everyone January 2018 and the business has since had its is aligned. You don’t get the same adversity best trading year ever. sometimes experienced in trade sales.”

Weathering the COVID-19 crisis relatively unscathed

Falkirk-based Palimpsest is the factor in helping the company immediately change to home customers was seamless.” UK’s market leader in the provision weather the COVID-19 crisis working and dynamically update Douglas Roberts of Lindsays of typesetting, digital and pre-press relatively unscathed. Qualified our workflow. The staff coped provided legal advice on the deal. services to the publishing sector, lawyer Ruth says: “We had to with this efficiently. The service to “Employee ownership is a flexible with over 50,000 books produced model that can be shaped to fit during its 25 years of operation. with the aspirations of the sellers, The two founders, Craig and Ruth and meet the current and future Morrison, had no plans to retire requirements of the business”, but wanted to lay the ground he says. “It is remarkable how for an eventual exit. They heard quickly employees embrace the about the employee ownership ownership stake and demonstrate option after attending an event enhanced performance soon after run by Co-operative Development completion. We have worked on Scotland, and finalised the move a number of these transactions in September 2018. It has worked with excellent results, and have well for the Palimpsest team, a healthy pipeline of companies and Craig and Ruth believe that considering employee ownership employee ownership was a key as the best way forward.”

September 2020 \ 19 IN ASSOCIATION WITH LEXISNEXIS

How Scottish law firms can remain competitive in a pandemic scenario Looking at your costs and keeping an eye on the latest technological developments and trends can help businesses through these uncertain times

is estimated that the UK gross domestic product (GDP) has fallen by 20.4% in the second quarter of 2020 (April to June), which is the It highest decline on record and 10 times higher than the worst month of the 2008 recession. How can Scottish firms respond to performance decline in individual practice areas? What should the long-term plans be? LexisNexis’ UK research study, the Gross Legal Product (GLP), examines the impact of the pandemic, detailing what we can learn from immediate results and statistical analysis of practice area legal trends. The study revealed that the Scottish economy and subsequent legal market demand have been media, and research and development, who rely Efficiency and tech adoption – more severely impacted by the crisis than the on complex global supply chains. Try the LexisNexis tech adoption quiz UK overall. Consistent with trends revealed by the • There will be greater pressure than ever from Traditional sources of income in local GLP report, the financial services industry is clients on fees – are your processes as efficient communities have stalled – Scottish councils responding positively to the pandemic, with the as they need to be? Are there any areas you can have had the highest cost in the UK of managing Scottish financial services industry only showing automate to free up time for more productive work? COVID, particularly the Highlands, Aberdeen and a very minor retraction. Much more resilient • 80% of firms are improving their technology Perth. The devastating effects that the pandemic than the total Scottish economy, it grew by 1.2% and working practices. This has been led by has had on the global oversupply of oil, lowering in March and only shrank by 1.7% in April, in a 47% increase in use of videoconferencing oil prices to the lowest they have been in 20 comparison to -5.8% and -23.8% respectively for platforms in the short-term, but the next phase of years, could mean job losses of up to 30,000 the whole economy. adoption is likely to include legal research tools in the sector, as regions relying on tourism and and efficiency solutions. marine fuel sales are also hit by COVID-19. Recommendations for Scottish firms Employment data shows that 23.6% of all Diversify or rebalance your practice those employed in Scotland are currently Keep control of your cash • Look at your service lines – how well aligned furloughed – 628,000 people in total – higher • You can find what financial support is available are they with our expanding practice areas? than the 22.9% in England. When comparing the for your business (including loans, tax relief, Are there any faster growing areas you could average share price of Scottish companies versus cash grants, job retention scheme) on the UK move into? Is it time to change your approach the FTSE 350, Scottish companies are down 31% government website or www.gov.scot for Scottish in struggling areas? in total, compared to 19% overall. Government schemes. • Make use of tools and research to facilitate Unemployment rates are also affected, with an • Are there any unnecessary costs you can strip your diversification and fill any gaps in your increase of 1.3% between February and April in out or delay? Review your variable costs and staff’s knowledge. 2020, whereas the UK rate stayed stable. Most seek payment holidays or negotiate discounts. • Can you merge or partner with another firm to prominently, research conducted by Durham Digital services can be considered to offer give yourselves a broader base for future crises? University with 250,000 companies in Scotland, better value and flexibility than the traditional across 99 sectors, put 29% of them at “high risk” alternatives. Stay on top of your receivables Trends and assumptions in this article were taken of collapse due to the impact of COVID-19 on and invoices, and proactively negotiate payment from the LexisNexis Gross Legal Product (GLP) supply chains. plans where possible. study, published in July 2020, due to be updated One reason behind this is that the Scottish • Forecast your cash flow regularly and be quarterly. Click below to download the full report economy is driven by work in the quaternary proactive in addressing any upcoming threats to and receive future legal market coverage. and tertiary (79%) sectors – namely knowledge- your business. A regular cash flow forecast will Download the full report based firms operating in information technology, help you make quick decisions when needed. www.lexisnexis.co.uk/GLP_Scotland

20 / September 2020 How do you stay on top of the legal changes in Scotland? Visit lexisnexis.co.uk/Scotland

Untitled-3 1 26/08/2020 11:07

SA-0820-059- Scotland Ads x The Journal 5.12.13 PM.indd 1 26/08/2020 5:14 PM FINANCIAL PROVISION

Fair sharing in a financial storm Achieving a fair financial settlement on divorce may be especially problematic in a recession. Richard Wadsworth and Amanda Masson look at the changing value of particular assets, and potential options to help meet parties’ needs

lockdown began, many undramatically edge up over a period of weeks” – demand, leading to lower prices, irrespective family lawyers raised that’s not very sexy! However, markets could fall of rock-bottom interest rates and exemptions concerns around valuation at any time between the relevant date and the from LBTT. of matrimonial property and date at which matrimonial property is actually That said, a recent Which? article provides As settlement of cases. What if transferred between spouses. Indeed, at the time the following predictions from property experts: anything should they do to of writing, commentators are remarking that • Knight Frank predicts a 3% drop this year discharge their obligations stock markets don’t appear to be reflecting what and a rise of 5% in 2021. to their client, having regard to the extraordinary is expected in the real economy, as the furlough • Savills says prices could drop by 5-10% this circumstances that arose? Consulting an scheme unwinds and company closures and year before rising by 4-5% next year. experienced and trusted adviser has become redundancies bite. • Lloyds Banking Group (which includes Bank more pertinent than ever. This article will explore of Scotland and Halifax) says prices could fall by how expert financial advisers can work alongside The family home up to 5% before recovering by 2% in 2021. family lawyers to provide practical advice to Regarding the housing market, the position is • Zoopla says a release of pent-up demand clients managing separation. far from clear. Unlike stock markets, there is no could see prices rise by 2-3% in this quarter, The notion of fairness underpins the Family mechanism constantly processing thousands of before dipping later in the year. Law (Scotland) Act 1985 scheme. Financial buying and selling transactions to give a clear • A Reuters poll of property experts claims advice may be useful in relation to valuation of picture of what the market is doing. Fewer and prices will drop 5% this year, before rising by matrimonial property, as well as when exploring less frequent sales of different stock make it hard 1.5% in 2021 and 3.5% in 2022. the specific nature of proposed settlements The final point to note about property prices is or orders. that there will be huge variations, depending on the region, whether it’s in a city or the country, Investments in the recession “Since lockdown, the true and countless other factors. So, seeing a loss What has been the impact of the pandemic, and position has become even from property is entirely possible; it’s just the ensuing severe recession, on matrimonial extremely hard to know what that might be. assets? In terms of investment portfolios and less clear. What is clear is In Wallis v Wallis, 1993 SLT 1348 (HL) the pensions (ignoring salary-related pensions, that sales volume is down, matrimonial home had risen significantly in ostensibly unaffected but subject to other issues value between the relevant date and the date of beyond the scope of this note), the position is albeit prices may have divorce. The transferee therefore stood to receive mixed. In March, stock markets fell significantly held up in the short term a windfall. The court held that the increase in and we saw losses of 30% or so, but since then value was not per se a special circumstance most markets have partially recovered. The due to lack of supply” justifying unequal division of the matrimonial FTSE100 is, over the 12 months to early August, property. This led to unfairness. The solution down about 15%, while the S&P500 (a US index came in the Family Law (Scotland) Act 2006, including a lot of “tech” shares) is actually up to know what is going on. This can explain why which amended s 10 of the 1985 Act to introduce about 10%. the man or woman on the street likes property, the concept of the “appropriate valuation date”. It should be noted that most individuals will not just because it is a physical asset, but Where the court orders transfer of property, hold not just company shares (which these because you don’t actually see what might be it shall be valued as at the date agreed by the indexes measure) in their portfolios or pensions, huge gyrations in price on an ongoing basis. parties, failing which the date of the order, but also lower-risk investments like fixed-interest All you see is the price previously paid and the unless in the latter case the court considers that bonds, many of which have enjoyed gains over sale price, giving the impression of a steady because of exceptional circumstances a different the last year, making the impact on overall increase over time. date should apply. portfolio and pension values much less severe Since lockdown, the true position has become It is a provision worth remembering when than the headline figures. even less clear. What is clear is that sales volume considering what should happen to the family You often see headlines along the lines of is down, albeit prices may have held up in the home as part of a settlement. Valuations provided “billions wiped off share prices” when markets short term due to lack of supply. As the issues in prior to March of this year may bear little fall, but you don’t see “shares slowly and the real economy bite, there is likely to be less resemblance to sale prices in a recession.

22 / September 2020 Financial modelling for clients The model can then be used to trial different Bob has spent his cash and investments on a Could it be argued that a recession-based slump scenarios such as: property, he has a pension pot of £300k. If Bob in the value of, say, a share portfolio should • spending less on a property and seeking a leaves that fund invested and draws an income be taken into account in looking at settlement larger pension share; directly from it (rather than buying an annuity), structures? The underlying principle of fairness • deferring selling a property and renting in the and we make certain other assumptions about may provide a hook. short term; returns and Bob’s life expectancy, his £300k As agents our obligation to the client to make • continuing working for longer than initially might give him a little over £17,000 per annum. sure the settlement is not only fair, but in their intended, allowing more time to build retirement This, with his state pension beginning at age 67, interests, can include making sure, as far as funds, and reducing the time over which these might be sufficient for Bob to live on. reasonably possible, that they have at least are required; But what if his pension value fell by 15% considered what their financial future may hold • using a mortgage to free up capital. during separation? In that case he would have a post-divorce. The modelling can also be stress-tested to pot of £255k, which, on the same assumptions, One of the sources of stress around separation allow for a reduced capital settlement, and to would give him less than £15,000 per annum. In is finance. Not knowing the potential position assume lower investment/pension values or this scenario, Bob might feel income would be (“Am I going to be OK financially?”) can cause lower proceeds from the sale of the family home. too tight, in which case he has some options to individuals to make less than rational decisions consider. These could include: on agreeing a settlement, and this could be Examining options: a case study • continuing to work for a few more years; exaggerated in a recession as they react to As a simple example, take the following asset • spending less on a property, perhaps seeking headlines. Modelling their future situation situation for separating couple Bob and Sue: more of a pension share instead; can help significantly increase their general • jointly-held family home worth £400k; • borrowing some of the property price. understanding of what might otherwise be a • Bob’s pension worth £200k; Sue’s £500k; Already we are seeing a rise in enquiries (scary) unknown, specifically the impact of • Bob’s investment portfolio worth £200k; from clients concerned that their income has reduced values on settlement options. Sue’s £100k; dropped due to the pandemic, or that their This modelling need not be an all-singing, • no cash. estranged spouse may be looking for more all-dancing cashflow using dedicated software Assuming a 50-50 split, Bob and Sue are each financial support for a longer period. The “silver (although that might be the ideal from the entitled to £700k. If they keep their own pensions separator” phenomenon is real, such clients adviser’s perspective). Indeed, an advanced and investments, Bob is entitled to another tending to be concerned about provision for adult cashflow model might be too much for the £300k and Sue another £100k. The simple children, retirement planning and inheritance tax client, and add to rather than lessen the stress solution is to sell the home and split the proceeds planning. The number and nature of the issues factor. A better option could be a “back of the fag £300k-£100k, which might suit both parties. raised by the pandemic in relation to valuation packet” calculation, or basic spreadsheet. It is the However, this would mean that Sue would and distribution of assets highlights just how principles that the client may not have got their have £200k to buy a new property (£100k important appropriate expert input is in terms of head round, rather than precise calculations. property proceeds and £100k in investments), adding value to the client experience. At its most basic the modelling might follow which she might feel is too little. Bob would have these steps: £300k, but might feel that is too much, and his 1. Consider what the value of the capital focus should be on building his more meagre settlement might be. pension funds. An alternative might be that Sue 2. Consider how that settlement might break receives a larger proportion of the sale proceeds, down between cash, pension share and say £200k, and instead shares £100k of her other assets. pension funds with Bob. Sue gets sufficient cash/ 3. Deduct any capital that will likely need to be investments to buy her property (up from £200k spent – the purchase of a new property, the gift to £300k), as does Bob, but he also boosts his Richard Wadsworth, Director Glasgow, to children of cash to fund university fees, retirement fund (from £200k to £300k). Carbon Financial Partners Ltd for example. Going one step further, Bob’s focus is on Amanda Masson, Partner, Head of Family Law, 4. Convert the remaining capital amount into retirement. What would his situation be if he Harper Macleod LLP an income for life. immediately retired at age 60? If we assume

September 2020 \ 23 DAMAGES Ogden 8: shifting the balance Updated for the first time in several years, the eighth edition of the Ogden Tables sees some substantial reworking – with effects that generally favour defenders, as Steve Love QC and Grant Markie explain

he Ogden Tables, love them, loathe them or fear them, have been updated for the T first time in nearly a decade. The eighth edition took effect from 17 July 2020. One of the laudable (if unachievable) aims of the Ogden working group was to simplify the use of the Ogden Tables in the calculation of future losses in damages actions. The effect of the updating of the underlying statistical data and the methodology used in its application appears to favour defenders; that is to say, that the multipliers for future losses are generally lower.

Tables reworked There are now 36, rather than 28 tables. They include additional tables for loss of earnings to age 68, reflecting the state retirement age. There has been a reworking of Tables A-D in relation to educational attainment, a revised definition of “disability”, and further guidance provided in relation to the quantification of fatal claims. The introduction of tables calculating multipliers to retirement ages of 68 and 80 will be a welcome addition to those who have had to interpolate the Ogden 7 tables to calculate a 9% reduction in predicted life expectancy. kind or the amount of work that a pursuer is accurately the state retirement age of 68, which Younger pursuers may see a reduction of able to perform. The definition reads: “A person was not previously provided for. So too will between 1 and 2%. is classified as being disabled if all three of the be the separate publication of the Additional following conditions in relation to ill health or Tables in Microsoft Excel format to allow for the Revised definition of “disability” disability are met: calculation of multipliers at discount rates of The eighth edition has responded to the (i) The person has an illness or a disability -0.75%, -0.25% and 0% from any age at date of increased prevalence of the working population which has or is expected to last for over a year proof to any future age (up to 125). being classified as “disabled” (an increase from or is a progressive illness; and The eighth edition does not address the 12 to 19%). (ii) The DDA 1995 definition is satisfied in that current COVID-19 pandemic, perhaps for obvious Ogden 7 adopted the definition provided in the impact of the disability has a substantial reasons. The effect that the crisis will have on the Equality Act 2010, which was that, in terms adverse effect on the person’s ability to carry future mortality is as yet unknown, and perhaps of s 6 of the Act, a person is disabled if that out normal day-to-day activities; and will not become clear for years. person has: (i) a physical or mental impairment; (iii) The effects of impairment limit either the and (ii) the impairment has a substantial and kind or the amount of paid work he/she can do.” Mortality data long-term adverse effect on that person’s ability Anyone not satisfying all branches of this The reliance on the Office for National to carry out normal day-to-day activities. three-part test is to be considered “Not disabled”. Statistics (ONS) downward estimate of the Ogden 8 reverts to using a definition based The terms “substantial” and “normal” will rate of improvement in life expectancy has on the Disability Discrimination Act 1995, likely require judicial interpretation. The generally translated into a reduction in life which applied at the time of the research guidance notes to the eighth edition provide that multipliers across the board. However, the most underpinning the Table A-D reduction factors. “normal” day-to-day activities are those which significantly affected group are older female To fall within that definition, the impairment are carried out by most people on a daily basis pursuers who, in some cases, see as much as must be work-affecting, either by limiting the and which include those carried out at work.

24 / September 2020 Examples The application of Ogden 8 to some commonly encountered scenarios has the following results:

Example 1 A female (aged 30 at date of proof) suffered an injury to her right arm. Her earnings pre-injury were £20,000 net; post-injury she is unable to return to work; she has a retirement age of 65; she falls into level 2 in terms of her educational attainment; she is considered disabled; she has no residual earning capacity; she requires future care at a cost of £50,000 a year. Her future loss is as follows:

Ogden 8

Multiplicand Multiplier Discount Value Earnings Pre-accident Table 10: Table C level 2: £660,408 earnings: 39.31 0.84 £20,000 Care Annual cost: Table 2 at -0.75% £3,702,500 £50,000 74.05

Ogden 7

Multiplicand Multiplier Discount Value Earnings Pre-accident Table 10: Table C employed £667,590 earnings: 39.27 GE-A: £20,000 0.85 Care Annual cost: Table 2 at -0.75% £3,847,500 £50,000 76.95

The Ogden 8 increase in the earnings multiplier (0.04) and increase in discount (0.01) results in a reduction in the award of damages for future loss of earnings of £7,182 or 1.1%. The decrease in the life multiplier (2.9) reduces the claim for future care by £145,000 or 3.77%.

Example 2 The pursuer is a 30-year-old male at the date of proof, with the other factors in example 1 above remaining the same. Multiplicand Multiplier Discount Value Education attainment categories Earnings The previous categories of D, DE-A and O Pre-accident Table 9 Table A level 2 £699,660 have been done away with. In their place, earnings: 38.87 0.90 levels 1, 2 and 3 have been introduced. As £20,000 the explanatory notes indicate, level 3 is the highest level educational qualification level Care and is used as a proxy for human capital/ Annual cost: Table 1 £3,491,000 skill level. The notes specify that those £50,000 69.82 in professional occupations such as law, Ogden 7 accountancy and nursing who do not have a Multiplicand Multiplier Discount Value degree nonetheless meet the criteria and fall to be treated as if they did. Earnings Disappointingly, despite later retirement Pre-accident Table 9 Table A employed £704,522 ages, the tables only provide for reduction earnings: 38.71 GE-A factors up to age 54 and simply propose that, £20,000 0.91 for claimants over that age, reduction factors Care will be “particularly dependent on individual Annual cost: Table 1 £3,571,500 circumstances” and tend to increase towards 1 £50,000 71.43 at retirement age for those who are employed and towards 0 for those who are not. It seems The Ogden 8 increase in the earnings multiplier (0.16) and decrease in discount (0.01) results this will result in a lack of precision and in a reduction in the award of damages for future loss of earnings of £7,182 or just over 1%. consistency of approach in calculations. The decrease in the life multiplier (1.61) reduces the claim for future care by £80,500 or 2.3%.

September 2020 \ 25 DAMAGES

Example 3 will closely mirror that which has applied in A female (aged 60 at proof) requires equipment at a cost of £50,000 a year for life. Her future loss England & Wales since 2005. is as follows: The explanatory notes incorporate a new Ogden 7 Ogden 8 Difference section E that provides guidance on the application of the discount factors in Tables Multiplier 32.68 30.53 A-D to the indexation of periodical payments Multiplicand £50,000 £50,000 for loss of earnings. It is proposed that, if loss Valuation £1,634,000 £1,526,500 -£107,500 of earnings claims are to be paid in the form of periodical payments, the issues of indexation, Application of Ogden 8 results in a 6.58% reduction when compared to the same calculation using employment risks and residual earning capacity Ogden 7. require to be considered and accounted for. The correct approach requires the identification of The position in relation to a 60 year old male pursuer with the same lifetime loss is: an inflation linked indexation figure for the pre- accident employment and a separate inflation Ogden 7 Ogden 8 Difference linked index for the post-accident employment. Multiplier 29.19 27.67 The effects may be limited in catastrophic Multiplicand £50,000 £50,000 injury cases where there is unlikely to be any Valuation £1,459,500 £1,383,500 -£76,000 residual earning capacity.

In this case, the reduction is 5.21%. This is a not insignificant downward trend which, when applied Summary to the upper reaches of lifetime losses, will result in significant reductions in awards of damages. The eighth edition provides overdue revision on Ogden 7, demonstrates a clear effort by the working party to make matters more user friendly for practitioners and offers welcome clarity on some calculation methodology. Comment assistance from an actuary or forensic Application of Ogden 8 will generally result in It can be seen that lifetime losses are the accountant should be sought. lower awards for certain categories of pursuer. awards most affected by the application of the Section D provides revised guidance in The reduction in many instances is small but, new mortality data. The examples demonstrate relation to the calculation of fatal claims in for older female claimants with significant that the awards for future care using Ogden 8 England, Wales and Northern Ireland in light annual losses, the impact may be significant. are materially lower than those achieved when of the Supreme Court’s decision in Knauer v The effects will be most evident in catastrophic using Ogden 7. The overall reduction in the level Ministry of Justice [2016] UKSC 9. injury cases but, in reality, the effect of the of awards may be significant. changes in multipliers can only be assessed on Periodical payment orders (PPOs) a case-by-case basis. Pension loss and fatal claims In Scotland, the courts still have no power The redefining of “disabled” will tighten up Section C of the explanatory notes deals with to implement PPOs. That power will exist the class of pursuer who will benefit from the pension loss, and new guidance is provided whenever the Damages (Investment Returns application of the increased discount factor to reflect the auto-enrolment requirement in and Periodical Payments) (Scotland) Act 2019 when it is appropriate to do so. The introduction effect since 6 April 2019. The explanatory notes eventually comes into force. It is unclear of new, wider categories of educational offer the helpful suggestion that where pension when that will happen, but it is reasonable to attainment is to be welcomed, providing greater losses are complex (when are they otherwise?), anticipate that, when it does, the Scottish regime accuracy in the assessment of discount factors. It remains to be seen whether the “rules” set out in the explanatory notes will be approved and adopted by the courts or whether departures will be made, particularly with claims for future loss of earnings, as were made under Ogden 7. To reflect these changes, practitioners may be well advised to consider reviewing current pursuers’ offers, tenders and advice given to insurers on their reserves. Compensators will welcome the arrival of Ogden 8, given disquiet following the outcome of the 2019 review of the discount rate in Scotland.

Steve Love QC, and Grant Markie, advocate, Compass Chambers

26 / September 2020

Briefings

Lessons from attorney was reiterated in the decision of Sheriff Why rules of procedure McCormick in FF v AFMS Ltd [2020] SC GLA are important a video proof 31 (9 July 2020). As a consequence a petition Normally decisions involving judicial review for liquidation was dismissed as incompetent, are not covered in this article. However the Precautions in relation to witnesses notwithstanding that the person acting for observations made by the Lord President in giving evidence at a proof conducted the creditor was on the roll of non-practising Prior v Scottish Ministers [2020] CSIH 36 (30 remotely have been noted by the judge solicitors. June 2020) are worth noting. The issue was that the averments of fact and legal argument in the first such hearing, a case which Group proceedings leads this month’s civil court roundup in the petitions for judicial review were quite Sections 20-22 of the Civil Litigation (Expenses different to the oral arguments advanced. Lord and Group Proceedings) (Scotland) Act 2018 Carloway observed that rules of procedure were permit group proceedings to be raised in an important element of any judicial system. Scotland. The rules for such proceedings are Expedition and finality were not concepts Civil Court now introduced by the Act of Sederunt (Rules of in conflict with those of fairness and justice. the Court of Session 1994 Amendment) (Group They were all integral parts of the system. LINDSAY FOULIS, SHERIFF AT PERTH Proceedings) 2020, which came into force on 31 Accordingly if there was to be any significant July 2020. They form chapter 26A of the Court change in a petitioner’s case, this should be of Session Rules. The Lord Ordinary lays down undertaken by amendment which gave notice to Jurisdiction; remote proof the procedure to be adopted in such a litigation, the opponent and was subject to control by the In Peter J Stirling v Brinkman (Horticultural subject to the specific provisions in the chapter. court, as opposed to being undertaken simply Service) UK [2020] CSOH 79 (13 August 2020), Provision is made for applications to be a by oral submission. In short, the rules ensured Lord Clark determined that the need for an representative party to bring such proceedings fairness and promoted the just determination of agreement conferring jurisdiction to be in and their determination, applications for a dispute. Such observations are perhaps worth writing or evidenced in writing for the purposes permission to bring such proceedings and their noting when so many hearings are taking place of para 6 of sched 8 to the Civil Jurisdiction and determination, and opt-in procedure. Thereafter at present by remote means, where there can Judgments Act 1982 was not met by a party’s the chapter deals with the commencement of be a temptation to overlook the formal nature of terms and conditions, including one relating group proceedings, the form of the summons the hearing as it is not being conducted in court. to jurisdiction, being sent and not being and defences, preliminary hearings, case demurred from. management hearings, debates, pre-proof Consequences of a debate At the beginning of the opinion it is also hearings, the lodging of productions for proof, The question as to whether a point discussed at interesting to note Lord Clark’s observations and settlement. There is specific power provided a debate can be revisited at a subsequent proof as to the conduct of a proof by way of to a Lord Ordinary to pronounce any order to before answer was aired before Sheriff Kinloch videoconference. Witnesses required to confirm secure the fair and efficient determination in West Lothian Council v Clark’s Exrs [2020] compliance with directions given by the court, of proceedings. There are provisions SC LIV 30 (3 June 2020). It was submitted including being alone in the room, having no dealing with the effect of interlocutors that everything fell to be considered of access to means of communication and not pronounced in such proceedings, and the new in light of the evidence having perused the productions sent to them. consequences of failure to comply with the now led. The short Clearly there are a number of issues involved provisions of the rules or any order answer depended on in evidence being taken remotely. The rules made by the Lord Ordinary. whether the evidence of both the Court of Session and sheriff court led raised anything are silent on such matters, and it may be that Averments new which could practice notes will be required to provide and debate enable legal points something akin to a checklist. The Lord Justice Clerk, Lady aired at the debate to be Issues in this case also arose regarding the Dorrian makes some pointed reconsidered. best evidence rule applying to a version of observations as to the need a production lodged in electronic form. Lord for averments to support any Proof Clark observed that a document of materiality submission made at a diet of There has been a move over recent in a proof did not require to be lodged in its debate, in the decision of the years for evidence to be presented original electronic version on the likes of a Second Division in Advocate in affidavit or statement form, and memory stick. Further, in a commercial action it General for Scotland v this is becoming even more prevalent was expected that such a challenge would be Adiukwu [2020] CSIH in the present climate. I suspect it will highlighted at procedural hearings. His Lordship 47 (14 August 2020). stay with us after COVID-19 has left the further observed that where a crucial piece of This might seem pretty building! Accordingly it is worthwhile evidence was not admitted and fell to be proved, fundamental, but…! Her Ladyship simply pointing out an issue which was it would be expected that this would be covered observed that to proceed on the aired before Lord Clark in Somerville v in a witness statement as opposed to being basis of oral submissions made “on McGuire [2020] CSOH 70 (10 July 2020). stated for the first time in oral testimony. the hoof” with little or no support In short, there still has to be record for being found in the averments was not what is contained in any affidavit or Representation an appropriate way of conducting written statement. This should not come The requirement for a person providing a debate. To survive a debate and as any great surprise, but clearly it professional representation in any legal proceed to proof, the pleadings had to is sometimes overlooked. It is not a proceedings either to hold a practising certificate provide some basis for the leading of new matter. Readers can view the or to fall within the definition of commercial evidence at that later hearing. observations made by Sheriff Kelbie

28 / September 2020 in Patterson v Patterson 1994 SCLR 166 the applicant being exposed to serious financial appellate court interfere with a decision on at 168A-C. risk which would deter a case of general public an interim order. Leave to appeal should only importance being advanced at all. The level of be sought and granted, bearing in mind that Breach of interdict representation permitted would be described as commercial procedure is designed for speedy The issue in Transocean Drilling UK v Greenpeace modest, and instruction of representation should resolution of disputes, when the likely delay [2020] CSOH 66 (3 July 2020) was whether be undertaken accordingly. was outweighed by compensating benefits an organisation could be found in breach At common law the court had discretion as which furthered a just and effective disposal. of interdict when the actions complained to the form of such an order. It was framed by of were carried out by unnamed individuals. reference to the circumstances of the case, The organisation had a duty to take all depending what was appropriate and fair. A reasonable steps to ensure the relevant condition for the grant of the order was a real servants or agents were made aware of the prospect of success. It had also been argued requirement to comply with the terms of the that there should be an exemption from court order, and further not to overlook, forget, or fees. In the present case, determination of this Corporate misunderstand that requirement. If such steps issue was unnecessary due to the pursuer’s EMMA ARCARI, ASSOCIATE, are not taken, acts or omissions of individuals personal circumstances. WRIGHT, JOHNSTON & MACKENZIE LLP might be attributed to the organisation. In this On a perhaps more commonly occurring instance the organisation’s knowledge and subject is the decision of Sheriff McGowan in active and essential support meant that the Akmal v Aviva Insurance Ltd [2020] SC EDIN 33 Various forms of grant assistance have been final decision of an individual to act in breach (28 July 2020). The defenders had made an made available to businesses from government of the order did not result in the organisation extrajudicial offer to settle before proceedings throughout the pandemic to help with enforced escaping responsibility for these actions. The were instituted, and on proceedings being closures. Some are more generous than others. comprehensive support and resources of the raised, tendered the same sum. After sundry organisation which enabled the individual to procedure the pursuer amended, increasing Who gets what? so act rendered the organisation responsible. the sum sued for by adding two new heads In March the Chancellor announced an These criteria applied with equal force in the of damage. The defenders tendered of new additional cash grant of £25,000 to all present instance, albeit the actions complained a greater sum and this was accepted. The businesses in the retail, hospitality and leisure of were conducted by volunteers as opposed tender was worded in the usual manner (RHL) sector in England, provided they had a to employees or agents. The division between offering expenses to the date of the tender. The rateable value of less than £51,000. He further executive and operational decision-making defenders sought to modify liability to the date advised that £3.5 billion in additional funding made no difference. of the first tender. Sheriff McGowan followed would be given to the devolved administrations the decision of the First Division in McKenzie to support businesses in Scotland, Wales and Expenses v HD Fraser & Sons 1990 SC 311, which to Northern Ireland. A week later it was confirmed In Keatings v Advocate General for Scotland summarise, determines that a tender worded that grants in England would be paid per [2020] CSOH 75 (30 July 2020) Lady Poole in the usual manner provides the court with property rather than per business. refused to make a protective expenses order the full power to award, not to award, increase, The amount of funding to be provided was at common law. The criteria for making such modify, or restrict expenses. The wording did to be calculated for Scotland through the an order were identified as: the issues were not preclude the court exercising its discretion application of the Barnett formula. In Scotland, of general public importance; public interest on issues regarding expenses. the amount available to be claimed by a RHL required that these issues be resolved; the party Sheriff McGowan considered that the two business was unclear until early June. By that had no private interest in the outcome; having new heads of claim, which necessitated the time it had evolved to: regard to the financial resources of the parties, amendment increasing the sum sued for, (1) a one-off £25,000 grant where the making the order was fair and reasonable; and should have been introduced much earlier as business had traded from a single property with the proceedings were likely to be discontinued the pursuer should have been readily aware a rateable value between £18,001 and £51,000; by the applicant if the order was not made. of them. The defenders, having investigated (2) a one-off £10,000 grant where the The requirements of no private interest and whether these claims were justified, tendered of business had traded from a single property with the discontinuance of proceedings were not new. In those circumstances, Sheriff McGowan a rateable value not exceeding £18,000; essential preconditions. Legal advisers being restricted the award of expenses to the pursuer (3) potential cumulative grants for businesses prepared to act pro bono was a factor in favour and found him liable to the defenders for trading from multiple properties, of £25,000 or of the order being made; however the order the balance of the expenses of process. This £10,000 (depending on rateable value) for the could still be made when advisers were being reflected the inefficient handling of the claim, first property with 75% of the full grant (£18,750 remunerated. The overriding purpose was to which led to very serious consequences and or £7,500 as applicable) for each eligible enable the applicant’s position to be presented in all probability prolonged proceedings and property thereafter. by a reasonably competent advocate without increased the expenses. Challenge to reduced grants Interim orders – In Sharp v Scottish Ministers [2020] CSOH 74 commercial actions (23 July 2020), the petitioner applied for judicial Update In the unsuccessful appeal by the defenders review after receiving a reduced grant. against the refusal to recall an interim interdict Of the petitioner’s properties, five had a Since the last article A & E Investments in Highlands & Islands Enterprise v CS Wind UK rateable value between £18,001 and £51,000; a v Levy & McRae Solicitors (March article) [2020] CSIH 48 (18 August 2020), Lord Malcolm, sixth had a rateable value below £18,000. Under has been reported at 2020 SCLR 574. delivering the opinion of the First Division, the RHL scheme the petitioner received one observed that only in a clear case would an grant of £25,000, four of £18,750 and one

September 2020 \ 29 Briefings

of £7,500. In the application for judicial review, to rationality as a standalone the petitioner argued that the 25% reduction to ground of review, simply because the grants paid for the second and subsequent there was a difference between properties of his business was unlawful: he England and Scotland in their had a legitimate expectation that a full 100% approaches to the grants did not grant would be paid in respect of each of his mean either approach was wrong. properties, and the decision to restrict the The courts should be slow to amount paid was irrational. interfere with political policy decisions Further, although detrimental reliance was in relation to the detailed allocation not essential, it was a relevant consideration of Barnett consequentials, unless and he had relied on the promise of a full grant Wednesbury irrationality was alleged. per property in his dealings with suppliers, and in taking important decisions about the Closure of scheme future funding of his shops. It was illogical to The closing date for the RHL grant in place businesses in Scotland at a disadvantage Scotland was 10 July. The judgment notes compared to equivalent English businesses that had the petitioner’s properties been Under while maintaining the scheme was based in England, he would have received Armour is a US being “mirrored”. a full 100% grant for all six properties. Could based company, founded in 1996, businesses have foreseen that the corporate which sells sports clothes and shoes. It has No legitimate expectation structure and location of their business been hailed by Forbes as one of the fastest Lord Fairley refused the petition for judicial would prove to be pivotal in the assessment growing companies in the apparel industry, review, stating that the petitioner did not have a of the amount of grants available? Though making $5.2 billion in 2018. Fujian Tingfeilong legitimate expectation. disappointing for single structure entities with launched its own sporting brand named “Uncle The judgment reviews the origins and branches in differing locations, the judgment Martian” in 2016. development of the RHL grant in Scotland and notes the benefits available to businesses The Under Arnour brand has a number of holds that the Chancellor’s initial statement that choose to operate in this manner and trade marks registered in China and it also was “ambiguous on the issue of whether cost savings available. When helping clients has a Chinese language equivalent of its the proposed grant support being described structure their businesses, practitioners will be brand name. In deciding the case, a number by him was intended to be per business or aware of the differing forms of trading vehicles of factors were considered. First, the logo per property”. In assessing whether or not a available and whether or not to incorporate was used substantially by the Uncle Martian case had been made in relation to legitimate (and if so in what form), the risks of failing brand. It featured on brand press conferences, expectation, Lord Fairley noted the relevant to ringfence assets, the benefits of limited investment promotion advertisements, the questions were: liability and the pros and cons of separate legal business premises of Uncle Martian, brochures, 1. Did the respondents create a legitimate personality. In this case the chosen business shoes, wristbands and T-shirts. Secondly, expectation in the terms contended for by the structure proved pivotal for the allocation of Tingfeilong used “Under Armour (China) Co, petitioner by making a promise which was grants in Scotland. Ltd” on its business cards even though it had clear, unambiguous and devoid of any relevant no relationship whatsoever with the company. qualification? Under Armour alleged that this amounted to 2. If so, did they frustrate that expectation? unfair competition. 3. If so, was that frustration so unfair that to Under Armour won its case on both trade take a new and different course amounted to an mark infringement and unfair competition. This abuse of power? has been a longrunning dispute between the He examined the statements made by Intellectual two companies, with Under Armour first filing its cabinet secretaries to “mirror” the measures Property case before the Fujian Province court in 2016. announced by the Chancellor, and the way the The Court of First Instance issued an injunction grant scheme developed in Scotland. He noted ALISON BRYCE, PARTNER, to stop the Uncle Martian brand from using the DENTONS UK & particularly that: “the use by the Chancellor MIDDLE EAST LLP logo. Tingfeilong was also ordered to destroy of the qualifying words ‘up to’ clearly signified the infringing products, pay damages totalling that whilst individual grants would be capped $300,000 and publish a public apology. The at £25,000, they would not necessarily be Under Armour has celebrated a rare Supreme People’s Court, on appeal, stated paid at that maximum level. The words ‘up to’ victory in China’s highest court in a trade that “Tingfeilong’s appeal request cannot be were relevant words of qualification”. Given mark infringement judgment issued in established and should be rejected; the first that the petitioner could not point to a clear, July. Companies have traditionally found it instance judgment has clearly established the unambiguous and unconditional promise, the notoriously difficult to enforce their intellectual facts and the applicable law is correct and (most crucial) part of the argument based on the property rights in China, but Under Armour’s should be maintained.” principle of legitimate expectation failed. success could spell a new trend. Nevertheless Lord Fairley considered the Under Armour argued its case before the A better climate? issue of abuse of power, expressing the view People’s Higher Court of Fujian Province, with The case marks an interesting turn in the that the respondents’ argument, that the policy the appeal being heard before the Supreme tide for companies wanting to enforce their for the allocation of Barnett consequentials People’s Court. It alleged that Fujian Tingfeilong intellectual property rights in China. In the was within the “macro-political field” where a Sporting Goods Co, Ltd infringed its intellectual European Commission’s biennial Report on change of policy would not readily be seen as property rights by using a logo that was the protection and enforcement of intellectual an abuse of power, was persuasive. In relation substantially similar. property rights in third countries, published in

30 / September 2020 IN FOCUS ...the point is to change it Brian Dempsey’s monthly survey of legal-related consultations

Redress for abuse survivors delivery. At the moment the proposals affect The Parliament’s Education & Skills England & Wales only, but with consumer January this Committee seeks views on the Government’s protection largely reserved to Westminster year, China was ranked as Redress for Survivors (Historical Child Abuse these deliberations may come to inform the Europe’s “priority 1” worst offender. Indeed, in Care) (Scotland) Bill. The committee law in Scotland. See www.lawcom.gov.uk/ China and its territory Hong Kong account asks whether the bill will achieve the goal project/consumer-sales-contracts-transfer- for more than 80% of the seized counterfeit of treating survivors of abuse with dignity of-ownership/ goods within the EU. This reflects a large-scale and respect and whether it will create Respond by 31 October via the above problem that has been ongoing for years. an effective redress scheme. See www. web page. A recent US report estimated that IP theft parliament.scot/parliamentarybusiness/ damaged the US economy by between $180 CurrentCommittees/115852.aspx billion and $540 billion a year. Additionally, the Planning consultations Respond by 2 October via the above European Commission’s report stated that sales, The Government seeks views on web page. jobs and government tax intake are all affected proposed changes to the requirements by IP theft. for pre-application consultation with It appears that China has taken notice of its Food traffic lights local communities in national and major trading partners’ complaints. It has recently The Scottish, Welsh and UK Governments developments. These requirements were published a national plan to combat intellectual and the Northern Ireland Executive seek introduced in 2009 under the Planning property infringement. The plan, titled Key views on ensuring that the “traffic light” etc (Scotland) Act 2006. The intention is points of the National Work to Crack Down front-of-pack nutrition labels scheme to improve community engagement in on Intellectual Property Infringement and the indicating nutritional content continues planning matters and build public trust. See Production and Sale of Counterfeit and Inferior to help people choose what food and consult.gov.scot/planning-architecture/pre- Commodities in 2020, was published on 5 June. drink to buy. application-consultation-requirements/ It contains a list of 35 points that the Chinese See www.gov.uk/government/consultations/ Respond by 6 November via the above Government will consider in its attempt to front-of-pack-nutrition-labelling-in-the-uk- web page. combat IP theft, the most relevant of which building-on-success are to “strengthen protection of intellectual Respond by 21 October via the above Regulating electricians property rights of foreign-invested enterprises”, web page. and “intensify multi-bilateral exchanges and Conservative MSP Jamie Halcro Johnston cooperation”. China is already seen to be seeks views on his proposed Electricians working hard on this plan, as the following Homelessness (Scotland) Bill which would “provide for month it sentenced four people to prison “local connection” the protection of title and registration” of for producing and selling counterfeit Dyson Scottish ministers, as required under s 33B such tradespersons. Currently there is no hairdryers. of the Housing (Scotland) Act 1987, are protection of the title “electrician”, so that China’s trading partners shall be cautiously consulting on the content of a statement on anyone can present themselves as such optimistic as the country attempts to crack how their power to modify local connection without having demonstrated any skills or down on IP infringement. Both the EU and the referrals between local authorities in qualifications. See www.parliament.scot/ US have previously criticised China on how it Scotland is to be exercised and on their parliamentarybusiness/Bills/115752.aspx enforces and regulates intellectual property proposal to suspend such referrals in order Respond by 10 November via the above rights. Indeed, it has been a longstanding to remove barriers to accessing support. See web page. concern that non-Chinese companies seeking consult.gov.scot/housing-and-social-justice/ to enforce their rights can face a very long and modifying-local-connection-referrals/ …and finally hard battle with little prospect of success. It is Respond by 23 October via the above As noted last month, the Government seeks interesting that the month before US-based web page. views on the commencement regulations company Under Armour’s success, the Chinese for the Prescription (Scotland) Act 2018 Government published its national plan, with Risk in consumer contracts (see consult.gov.scot/private-law-unit/ one of the focuses being to improve foreign The default legal rules on transfer of prescription-commencement-regulations/ exchanges and cooperation. All eyes are now ownership in consumer contracts where and respond by 14 October), and on whether on China to see if the tide is turning on the the consumer pays in advance of delivery the Lands Tribunal might be incorporated into enforcement and regulation of intellectual are under review by the (English) Law the Land Court (see consult.gov.scot/justice/ property rights within the state. Commission. These rules matter if, for land-court-and-the-lands-tribunal/ and example, the retailer ceases trading before respond by 19 October).

September 2020 \ 31 Briefings

acquisition of the land under statute. In addition While these protocols are not strictly related to Agriculture the crofters’ minutes specifically stated there agricultural law, they are one of a series issued was an assessment of diminished values by the Commission to assist bringing the Scottish ADÈLE NICOL, PARTNER, ANDERSON STRATHERN LLP consequent on compulsory acquisition of part Government’s Land Rights and Responsibilities of the crofts by the Air Ministry, supporting the statement into practice. I will not attempt to cover view that this was what had happened. their content in detail here, but anyone acting Crofting tenure still? In the absence of any material for a rural landowner should be aware of those This quarter’s article does not specifically counterbalancing factors, the appropriate protocols and how they may impact or indeed deal with agricultural matters as, other than inference to draw was, as a matter of probability, afford new opportunities for such clients. the extension until 12 December 2020 of the that what had occurred was a compulsory period in which an amnesty agreement can acquisition under statute and therefore the land be agreed, there has not been much, in legal ceased to maintain crofting tenure. terms, to report in the agricultural sector. I will Land can only be removed from crofting therefore comment on Highlands & Islands tenure by a resumption by the landlord on an Airports v Committee for the combined common application to the Land Court, or a decrofting Scottish Solicitors’ grazings of Melbost and Branahuie [2020] CSIH order on the application of the landlord or Discipline Tribunal 8 (28 February 2020), an interesting case an owner/occupier crofter to the Crofting highlighting the complexities of crofting law Commission, or the exercise of compulsory WWW.SSDT.ORG.UK and in particular the question of when does powers. Anyone acquiring land in the crofting croft land or common grazings cease to lose its counties needs to keep this in mind if it is status as such. possible that land might, at some time in the William Renfrew The owners and operators of Stornoway past, have been subject to crofting tenure, since (s 42ZA appeal) Airport applied to the Land Court seeking to without being formally removed from crofting clarify that land owned by them was no longer tenure by these mechanisms, the land will An appeal was made under s 42ZA of the subject to crofting tenure. The application remain as such in perpetuity. Solicitors (Scotland) Act 1980 by Khizer Khan, was opposed by the grazing shareholders. The use of croft land for other purposes can Giffnock, Glasgow against the determination by The disputed area was part of land of which be a very live issue. The writer has personally the Council of the Law Society of Scotland in possession had been taken in 1940 by the come across croft land on which local authority respect of a decision not to uphold a complaint Secretary of State for Air for the war effort. Title housing had been built; croft land incorporated of unsatisfactory professional conduct made by was taken by a later backdated disposition from into someone’s garden; and croft land forming the appellant against William Renfrew, solicitor, the trust, which disposition made no reference the car park of a convenience store, all of which, W Renfrew & Co Ltd, solicitors, Glasgow (the to the exercise of compulsory powers but unlike the case here, could not found on any second respondent). followed on minutes of agreement between the compulsory powers, resulting in the parties who The appeal was defended by the first Air Ministry, the trust and the crofters in the were using the croft land having to take steps to respondents. The second respondent did not enter four townships concerned. In 2001 the airport resume and pay compensation. the appeal process and later the Tribunal learned was conveyed by the Secretary of State’s that he had died. The first respondents’ position successor to the applicants. New Land was that the appeal could not longer proceed. Before the Land Court the applicants argued Commission protocols The appellant’s submission was that the appeal there was a necessary inference that the 1940 The Scottish Land Commission, as part of its should continue. Parties made submissions to the acquisition had been made under compulsory Land Rights and Responsibilities Protocols Tribunal at a procedural hearing on 8 July 2020. powers, which would have removed the common in its Good Practice Programme, has issued The Tribunal carefully considered the parties’ grazings from crofting tenure. The Land Court two new protocols titled “Diversification of submissions and had regard to its powers when determined, on the material presented to it, that Ownership and Tenure”, and “Negotiating the dealing with an appeal under ss 42ZA and 53ZB the airport remained subject to crofting tenure. It Transfer of Land to Communities”. These set of the Solicitors (Scotland) Act 1980. stated a special case for the Inner House. out practical expectations for achieving a more Although the appeal would proceed by The Land Court provided five reasons for diverse pattern of land ownership, management way of a review of the Professional Conduct its conclusion, which centred on the absence and use, focusing on how landowners create Committee’s decision making, at its heart of documentary support for compulsory opportunities for local businesses, residents or this was a disciplinary case involving an acquisition, the terms of the disposition and community organisations through purchases, individual solicitor. The solicitor had to have the terminology in the crofters’ minutes of leases and other collaborative working the opportunity to defend himself against agreement. The Inner House however came arrangements. The protocols are supported by the complaint in disciplinary proceedings. to the view that the use of language referring a route map which provides a visual guide for The first respondents should be able to call to compulsory acquisition and the landowners to create more opportunities him as a witness if required. It would not be adoption of rules in a 1919 Act for communities to get involved fair to proceed with the appeal without these relating to compensation on with ownership of land. They safeguards in place. Although the Tribunal had compulsory acquisition contain two case studies, the power to award compensation, this power would only be explicable namely Buccleuch was ancillary to the disciplinary decision. There if what was happening Langholm Moor were no Tribunal rules or legislative provisions was an exercise in sale, and Doune which would allow executors to be sisted to the the assessment Ponds, involving case to allow an order for compensation to be of compensation Moray Estates and made against them in the place of the second following Doune Community respondent. Therefore, on the first respondents’ compulsory Woodland Group. motion, the Tribunal dismissed the appeal.

32 / September 2020 Planning obligations: seeking better practice To inform the Scottish Government’s review of the effectiveness of planning obligations, the Law Society of Scotland undertook a consultation which has led to it formulating a series of proposals for Government

covered, including model and style agreements, (s 75C): the circular should be updated to reflect Planning heads of terms and processing agreements, that, while the approach to this matter requires ALASTAIR McKIE parties to the agreement, connection to the site to be based on risk to the planning authority, it PARTNER, ANDERSON area, liability of parties and the enforceability of will generally be appropriate to exclude liability STRATHERN LLP planning obligations, recording or registration, for former owners other than in relation to and unused contributions. antecedent breaches. The purpose of the consultation and • Enforceability: the circular should be updated Planning obligations, often known as “section discussion events was to identify an evidence to reflect that it will generally be appropriate 75 agreements” in reference to s 75 of the Town base to support good practice. The consultation to exclude liability for bona fide purchasers of and Country Planning (Scotland) Act 1997, are attracted 31 responses from solicitors in private individual residential properties (with the exception an important part of the planning system. These practice, solicitors and non-solicitor staff of of specific provisions relating to affordable housing) obligations are entered into to mitigate the planning authorities and organisations. and any statutory undertaker who proposes to impacts of proposed developments. They are place infrastructure on a development site. The increasingly being used by planning authorities Proposals circular should reflect that it is unreasonable to support infrastructure provision required Following the committee’s analysis of the for a planning obligation to provide that an as a direct consequence of development. This consultation responses and events, it is clear that appropriate remedy for a material breach of includes financial contributions or in-kind there is a strong evidence base for a number of the obligation is for the planning authority to provision of affordable housing, schools, and proposals to be made in relation to the circular. be entitled to revoke the permission without transport infrastructure. The Society considers that if taken forward, these compensation (other than as referred to below). While the existing Planning Circular would improve the efficiency and transparency • Recording or registration of a planning (Circular 3/2012, Planning Obligations and Good of the process of completing and registering obligation: the circular should be updated to Neighbour Agreements) provides advice on the planning obligations and therefore help to reflect that where rejected by the Keeper, the scope of planning obligations and the need facilitate earlier release of planning permissions. obligation may need to be amended or a new for compliance with five policy tests, it does The committee’s findings have been reported obligation entered into. Where the landowner is not provide detailed guidance on many of the to Scottish Government and will contribute to unwilling to amend or enter a new obligation, or practical aspects of planning obligations which the review of planning obligations. has become insolvent (thus unable to do so), it is often are the subject of detailed negotiations Its proposals include: considered reasonable for the planning authority between the parties after a “minded to grant” • Model agreements and in-house styles: in these limited circumstances to reserve the decision has been made. planning authorities should be encouraged to right to revoke the planning permission without The Scottish Government is currently consult on and publish a model planning obligation, compensation. reviewing the effectiveness of planning recognising the need for this to be reviewed • Unused contributions: planning obligations obligations (www.transformingplanning.scot/ regularly and updated as appropriate. The need for should provide for unused financial contributions planning-reform/work-packages/), and the flexibility must be recognised, while having regard to be returned to the payer if not used within findings of its review will inform future policy to the model and reflecting the desired objective a particular period of time. The circular should development on infrastructure planning and of efficiency. The committee suggests standard provide guidance on the appropriate period, delivery in Scotland. clauses be developed on a range of matters (e.g. recognising that this will depend on the excluding liability for former owners, ultimate circumstances and that it will be appropriate to Project work owners and statutory undertakers; registration of consider the period relative to local development There are a range of examples of good practice, planning obligations), the use of which would be plan review cycles and local planning policy. and also variations in practice, in relation optional, but encouraged. The full paper, including proposals and to planning obligations. The Law Society of • Continuing liability for former owners analysis of the consultation responses and Scotland’s Planning Law Committee considers discussion events, is available at www. that there may be merit in further detailed lawscot.org.uk/research-and-policy/ guidance to help enhance consistency and “The need for flexibility lawsocietyconsultations/ to assist in reducing delays in the process of negotiating planning obligations. must be recognised, while Alastair McKie is a legal associate of the Royal The committee therefore undertook a having regard to the Town Planning Institute, a Law Society of consultation in late 2019/early 2020, followed by Scotland accredited specialist in planning a series of virtual discussion events to explore a model and reflecting the law and convener of the Society’s Planning number of practical issues. A range of topics was objective of efficiency” Law Committee

September 2020 \ 33 Briefings Rough justice, smoother delivery The advantages of adjudication for a party seeking payment under a construction contract have been strengthened by new services to deal with “low value” disputes, and an Inner House decision illustrating a pragmatic approach to enforcement

if the contract is not in writing), a set of If a payee can no longer afford to adjudicate Construction default statutory rules under the “Scheme for (let alone litigate or arbitrate), the access to Construction Contracts” will take effect. justice issue highlighted by Sir Michael again NICK McANDREW, The key advantages of adjudication are: rears its head. Two recent developments are ADVOCATE, AMPERSAND ADVOCATES (i) the reduced cost and increased speed of welcome in addressing that issue. The first is recovering payment (when compared to court the release of new services for determining or arbitration); and (ii) the ability to select an “low value” claims, and the second is the Inner In 1973, the English Court of Appeal described adjudicator with qualifications relevant to the House’s recent support for a pragmatic approach the cash flow of a construction company as dispute. Whilst adjudication is often said to to the enforcement of adjudicators’ decisions. the “very life blood of the enterprise”. Some deliver “rough justice”, that concern is balanced 50 years later, concerns over cash flow are against its advantages and the fact that the Cost: low value dispute services exacerbated by COVID-19, never mind the decision is interim binding only. As put by the The Technology & Construction Solicitors’ impending impact of Brexit. Luckily, there is a Supreme Court, “The motto which has come to Association (TeCSA) established its Low Value way of ensuring that cash can flow quickly. summarise the recommended approach is ‘pay Dispute Adjudication Service permanently The adjudication provisions within the Housing now, argue later’.” in January this year. More recently, the Grants, Construction and Regeneration Act 1996 Construction Industry Council launched its Low (the “Construction Act”) significantly enhanced The problems Value Dispute Model Adjudication Procedure (the the rights of payees. Those provisions were In more recent years, the advantages of reduced LVD MAP), which is now available from a range introduced in response to the final report of cost and increased speed have been eroded: of adjudicator nominating bodies. Some key Sir Michael Latham, Constructing the Team. Sir • Cost. The types of disputes have become more features of the schemes are considered: Michael highlighted the access to justice issue complex, and the procedure more sophisticated • Adoption of procedure. The TeCSA service presented when contractors faced lengthy as a result. In addition, adjudicators are wary of can be used under existing contracts simply by delays recovering payment through the courts. their decisions being undermined by challenges asking TeCSA to appoint an adjudicator (unless His recommendation that adjudication became raised at the outset, based on jurisdiction, the contract names an adjudicator or restricts “the normal method of dispute resolution for example the absence of a “dispute” or the the adjudicator nominating bodies that may in construction” has since been taken up by referring party’s failure to appoint the adjudicator be approached). By comparison, the LVD MAP the industry. in line with the contractual procedure, and/ constitutes a new set of procedural rules that or natural justice – in general, some sort of must be incorporated into new contracts or How does adjudication work? procedural unfairness. Perhaps a symptom of otherwise used with consent. In summary, the Construction Act provides that: both of these factors, there is a tendency for • Value threshold. Under TeCSA’s service, a • Any party to a “construction contract” (defined some adjudicators to allow multiple rounds of low value dispute is anything up to £100,000. in s 104, with exclusions in ss 105 and 106) must submissions rather than exercise strict control This compares to the £50,000 threshold have the right to refer a dispute to adjudication over the timetable. This substantially increases under the LVD MAP. Both are sensible, given at any time (the pursuer is the “referring party” the parties’ legal costs (which, importantly, the Adjudication Society’s 2019 statistics that: and the defender the “respondent”). neither can recover from the other side). (i) 38% of disputes had a value from £0 to • The dispute must be determined by the • Speed. The successful referring party may £50,000; and (ii) 19% had a value between adjudicator within 28 days, unless an extension not be cashing its cheque immediately. The £50,000 and £100,000. to the timescale is agreed. respondent can refuse to comply with the • Fee cap. Adjudicators’ fees are capped • The adjudicator’s decision is “interim binding” decision, based on a challenge raised at the according to a sliding scale based on the value on the parties. This means that the decision outset, or a shortcoming in the written decision. of the claim (beginning at £2,000 and rising to must be complied with, unless the dispute This has led to a practice of respondents £5,000 (TeSCA) and £6,000 (LVD MAP)). These is determined afresh through the courts scrabbling around for grounds to resist caps will undoubtedly deliver a saving, in light or arbitration. enforcement, and therefore delay while an of the Adjudication Society’s finding that the Importantly, if the construction contract enforcement action is determined through average adjudicator’s fee was £9,000. There is, does not contain these provisions (for example, the courts. however, a trade-off for reduced cost: the dispute

34 / September 2020 must be relatively straightforward to determine. in relation to some aspect of the dispute. The in such a way that they achieve its fundamental • Complexity. Under the TeSCA service, the claim problem was that, in such cases, the decision purpose, which is to enable contractors and must be for a specific sum of money (e.g. a claim became a house of cards. It was generally subcontractors to obtain payment of sums to which for liquidated damages, or the so-called “smash viewed as a total nullity and could not simply be they have been found entitled without undue and grab” adjudication based on sums previously enforced to the extent it was valid. delay”. Looking beyond the issue of severance, this certified). Disputes under the LVD MAP are not In Dickie & Moore the Inner House considered emphasis on the underlying principles will serve as limited to claims for specific sums of money; this problem. The case concerned an a warning to respondents considering other types however a list of factors is given to determine adjudicator’s decision on a contractor’s claim of challenge to enforcement. whether the dispute is suitable or not. These for payment of its final account. There were are more restrictive, being dependent both on three types of subclaim. There was no dispute Advising clients the substance of the claim and the volume of that the adjudicator had jurisdiction to deal with In light of the advantages of adjudication, material to consider. claims 2 and 3, but the Lord Ordinary held that solicitors should consider how they might advise One of the drawbacks with the LVD MAP is he had no jurisdiction to deal with claim 1. The their clients: the prospect that the adjudicator could resign question became whether the court could ignore • Litigators. The Law Society of Scotland expects if, midway through, a dispute became too the decision on claim 1 and safely enforce the solicitors to “have a sufficient understanding complex or document-heavy. This could lead decision on claims 2 and 3 (in other words, apply of commonly available alternative dispute to attempts by the respondent to frustrate the severance of the good from the bad). resolution options to allow proper consideration process. Separately, neither service can be used The Inner House clarified that severance and communication of options to a client in for low value but nonetheless complex claims. is allowed, so long as the valid parts of the considering the client’s interests and objectives” The solution in such cases is for adjudicators to decision are not “significantly tainted by the (guidance to rule B1.9). While a lengthy sheriff be more proactive in regulating the procedure adjudicator’s reasoning in relation to the invalid court or Court of Session action would achieve and timetable in an adjudication. In doing so, parts”. In effect, removal of one card should not finality, would a quicker adjudication better suit adjudicators will be walking a tightrope in view always lead to a total collapse. the client’s objectives? of potential jurisdictional and natural justice This principle can be more easily applied to • Drafters. Drafters should consider challenges, although most should be able to “final account” claims, which usually consist of incorporating the LVD MAP into new strike the correct balance. Further, adjudicators different types of subclaim, although it is not construction contracts. Where the activities may take some reassurance from the recent restricted in scope. A “practical and flexible” would not be caught by the Construction Inner House judgment in Dickie & Moore v approach will be applied to determine whether, Act, a bespoke adjudication procedure could McLeish’s Trs [2020] CSIH 38. in any case, there are elements to the dispute be considered (for example in the case of that are clearly separate and untainted. Where construction of a residence, which is excluded Speed: approach to the test is met, it will no longer make economic from the Act, by using the scheme available enforcement of decisions sense for a respondent to resist enforcement of under the JCT Building Contract for a While a firm line has always been taken on a decision when the adjudicator’s failure affects Homeowner/Occupier). enforcement, in recent years the Scottish a lower value element. The increased access to adjudication, through courts have refused to enforce the decisions of This decision was grounded in the policy aims the developments discussed above, may now adjudicators who failed to address a material of adjudication, the Inner House noting: “the tip the balance when deciding between dispute line of defence or provide adequate reasons provisions of the scheme should be interpreted resolution options.

September 2020 \ 35 In practice

O SHAPED LAWYERS Full circle: the way ahead The O Shaped Lawyer® is a new programme that promotes professional success by putting people, whether colleagues or customers, at the heart of legal services. Neil Campbell, of the programme working group, explains the concept

re you an O shaped lawyer? This is not a comment on anyone’s diet and exercise habits since the COVID-19 A lockdown, but a challenge based on a programme that takes a fresh look at the skills and competencies needed to be a successful lawyer from the eyes of the customer. Its starting position is that the technical, analytical skills which are the longstanding Figure 1: the 12 attributes of an O shaped lawyer hallmark of a lawyer need to be supplemented by additional skills and competencies. Developed last year by a group of UK lawyers, the purpose of the O Shaped Lawyer Programme is simple O shaped is three by four, over five • putting yourself in other people’s shoes to – to make the legal profession better: better The O Shaped Lawyer Programme started life support informed decision-making; for those who work in it, for those who use it, as a group of likeminded individuals who wanted • not seeking to blame others; and for those who are entering it. This is a bold to make a positive difference to the profession. • acknowledging the contributions of others and ambition, so what is this programme? Their goal was to create a model which did not celebrating their successes; At its heart, the O shaped lawyer is about just advocate for a broader skillset for lawyers, • giving praise when deserved without being mastering more human-centric behaviours and but which spoke with the customer voice and overly concerned about taking credit; attributes under three pillars: was practical in its application. To do so, the • developing self-awareness (i.e. reading your • first, competencies to build successful group started by interviewing 18 GCs of FTSE own emotions and knowing your strengths and long-term professional relationships, whether 350 entities to understand the attributes and limitations); between lawyer and customer, between in- skills that lawyers must acquire to become • developing self-management/self-regulation house and law firm, or between colleagues; valued partners with their customers. This (i.e. being able to control your emotions in • secondly, competencies which will enable a research highlighted 12 attributes of an O a healthy and constructive way); lawyer to adapt to the changing legal landscape shaped lawyer which fall under the three pillars • demonstrating and promoting social and to help them develop and thrive in their mentioned above (building relationships, being awareness; legal career; adaptable and creating value): see figure 1 above. • promoting relationship management through • thirdly, competencies to support customers, to These attributes sit within a framework of five a focus on social skills. understand priorities and goals and to identify “O shaped” behaviours which drive not just the Viewing just one element of the 12 attributes opportunities to find the best legal solutions and actions of the programme, but which the group in this way, the impact of their exercise on a create value for the client. likewise views as the mindset which successful relationship between lawyer and customer These are not new requirements, but those O shaped lawyers will need to adopt: see figure 2. becomes apparent. The attributes may even seem leading on the O Shaped Lawyer Programme So, what do these attributes mean in practice? obvious, yet they are rarely actively developed, believe the time is ripe for change. Why? Focusing on “empathy” (also known as EQ) as whether for those in the profession or for those The legal services market is in a state an illustrative example, it is clear that high levels completing legal education to enter the profession of change. External factors such as new of EQ are becoming increasingly recognised as in the future. In combination, they have the legal service providers entering the market, a necessary component of leadership which potential to create lawyers capable of developing the potential for technology to disrupt the differentiates the great from the good. Yet all too powerful and value-driven relationships. traditional role of the lawyer, the increasing often it is IQ, assessed through exam results and expectations of clients demanding “more for technical knowledge, which is given far greater Bringing O shaped lawyers to life less”, and more innovative solutions, will impact weight in determining recruitment and career Identifying behaviours and attributes is helpful, the traditional legal services model. Internal progression. EQ is rarely discussed, and more but on its own it isn’t going to change the factors within the profession are also driving rarely still, actively developed. Yet the research dial. A core feature of the O Shaped Lawyer change. The challenges to become more diverse of the O Shaped Lawyer Programme has shown Programme is its focus on bringing the 12 and inclusive, and to respond to the concerns that though EQ may be termed a “soft skill”, it is attributes to life, within the framework of the five raised around mental health and the wellbeing a hard requirement to drive value for customers. O shaped behaviours. To achieve true practical of members, are two examples. Lawyers who Consider the following examples of behaviour application, the programme focuses on two develop and adopt a broader set of skills and which demonstrate high levels of EQ, and the separate but interlinked workstreams: behaviours will be best placed not only to impact each might have on building long term meet these challenges but to make the most of and successful relationships with colleagues The education stage opportunities that changes will bring. and clients: A core objective of the O Shaped Lawyer

36 / September 2020 Programme is to see legal education modernised house legal teams and law firms to explore new recognises that there will be profound changes to better reflect the skills and competencies ways of working together in a safe environment to the provision of legal services in the years needed to be a successful lawyer. While based on the three customer-centric pillars of to come; and that lawyers will need to adapt technical knowledge and its practical application building relationships, being adaptable, and to meet changes as well as continue to meet remain core, the programme’s aim is to creating value. The purpose is to use O shaped client expectations. There is a spotlight shining embed the O shaped attributes into training behaviours and attributes in a real life, real time on the profession’s ability to respond to the gap for the profession. In England, the University working environment for them to improve the in diversity and inclusion, and on how wellbeing of Law (U-Law) will shortly pilot a one-day relationship with each other, and look together and welfare are dealt with. Good work is already course for trainees and junior lawyers on at how the service to the end customer can be taking place to understand and respond to this the “building relationships” pillar, with later improved. These pilots offer a safe environment diverse range of challenges. The O Shaped courses on the other two pillars also planned. which encourages open and honest discussions. Lawyer Programme hopes to play its part: Several universities and law schools have also Already, pilot groups are reporting tremendous putting people first, and shifting the dial so that expressed an interest in either developing progress, with one senior in-house lawyer a lawyer’s technical expertise is complemented specific modules or embedding the attributes commenting: “Since starting the pilot I have had by a broader palate of behaviours and attributes throughout their programmes. While it is early some of the most open discussions I have ever which are not only recognised and valued, but days, it is encouraging to see legal educators had with the external lawyers that support are also embedded into a lawyer’s development and legal practitioners coming together to our business.” throughout their legal career. discuss the skillsets needed to be a lawyer. To date, six pilots are operating, with more in The programme’s vision is for lawyers to The O Shaped Lawyer Programme will the pipeline. The outcomes are intended to be master attributes which will put them in the continue to collaborate with universities and law shared across not just the wider customer and best position to meet the challenges and schools to ensure that legal education, which is law firm relationship, nor only in the relevant opportunities facing the legal profession, which so rarely viewed afresh, places a much greater law firm, but with the wider legal help a lawyer to develop and emphasis on the building of more rounded community. In this way, the findings thrive in their legal career, which lawyers, utilising the framework that the will also inform the education create more rounded lawyers who programme has put in place. stream. can deliver better value to their customers, and, just maybe, which The practice stage Be part of the discussion help to make the profession better Strengthening the relationship between lawyers The O Shaped Lawyer Programme for everyone involved. and their customers (including between private has existed for less than a year, If the O Shaped Lawyer practice and in-house lawyers, and both types yet in that short space of time its Neil Campbell, Programme resonates with you, or of lawyers and their end customer) is a core vision of a legal profession which managing legal to find out more, join our O Shaped objective of the O Shaped Lawyer Programme. puts people first, its aim to make counsel, Royal LinkedIn group (search for: “The O It is within the practice stream that true the legal profession better for Bank of Scotland, Shaped Lawyer Group”) and visit our and member of the practical application of O shaped attributes and everyone involved in it, and its O Shaped Lawyer website (www.oshapedlawyer.com), behaviours can be tested and refined. engagement with legal educators working group both of which contain lots more To foster practical application, and to test the and legal practitioners alike to help e: Neil.J.Campbell@ information. If you are interested impact of new O shaped initiatives properly, the make this happen, have found a rbs.co.uk in getting involved, please join the programme has developed a pilot scheme for in- receptive audience. The programme mailing list or contact me.

Figure 2: the five “O shaped” behaviours

September 2020 \ 37 In practice Court plans must involve profession, Society insists

onsulting with Afterwards, President Amanda to ask that stakeholders repay the legal Millar commented: “I appreciate that support by ensuring that the profession is the Lord President and his needs and views of Scottish key to colleagues giving the solicitors are taken into C delivering time to meet with account in planning post-pandemic us to discuss the for the future.” courts which are effective and fair concerns of our Welcoming a for all, the Law Society of members. We commitment from Jack joins Scotland has insisted. are all aware of SCTS to further trade advisory Following recent concerns the significant discussions, over virtual custody courts, and challenges facing she added: “The group a Scottish Courts & Tribunals the court service. suggestion of Service modelling paper which We are committed introducing weekend Lorna Jack, chief executive of the raised the prospect of Saturday to continuing to engage courts is a particularly Law Society of Scotland, has been court sittings among measures to positively in creating innovative significant one, which would appointed to represent Scotland’s eliminate the backlog of trials, the solutions which support an have a negative impact on an legal sector on an expert group on Society’s President, Vice President effective and fair court system already under pressure group of professional advisory services. and chief executive met with for all. professionals. Our Criminal Law The group is one of 11 trade the Lord President, Lord Justice “It is important to recognise Committee believe that no case advisory groups set up by Clerk and SCTS chief executive to that it is through the goodwill and has been made to justify this International Trade Secretary Liz emphasise the need for consistent professional commitment of our proposal, but we look forward to Truss to help inform the UK’s consultation, in what was members that the courts have engaging in discussions about position in trade negotiations described as a “frank and robust” been able to operate as they have alternative ideas to address the post-Brexit. exchange. in recent months. It is reasonable court backlog.”

Notifications OBITUARIES ENTRANCE McALONAN, Danielle WHITE, Nadia Bridia Coates CERTIFICATES Josephine YULE, Kathryn Elizabeth MACPHERSON, Jack ISSUED DURING McCOURT, Rachel DORIS MARGARET AGE: 73 JULY/AUGUST 2020 McCrae McINTOSH, Charise APPLICATIONS FOR ADAM, Nathan Cameron MENZIES, Samantha MACKAY (retired ADMITTED: 1978 Roberta ADMISSION Lee JULY/AUGUST 2020 Ruth solicitor), Edinburgh AL-MIDANI, Samia MACINTYRE, Connor AHMED, Sabihah MURRAY, Richard David Naomi Angus Macpherson AIRTH, Sophie Elizabeth On 16 June 2018, THERESA AULD, Rebecca McKEOWN, Lisa Elaine AITKEN, Emma Roberta NAPIER, Flora Elizabeth Doris Margaret GWENHWYFER MANSON, Andrew NEEDLE, Lucy Louise BARCLAY, Gemma Marjory Mackay, formerly GAVAN HUNT, BATHGATE, Colin John Duncan ARCHIBALD, Scott ORLANDO, Nadia MEHIGAN, Liam Peter BENSON, David Trayner Michael PATERSON-HUNTER, employed with Aberdeen MILKOVA, Rory BROOKS, Rachael CHRISTI, Anoop Kirsty April Margaret the Secretary of On 24 July BUCHANAN, Scott Milcheva COCKBURN, Ruth PEHLIVANOV, Kiril State for Scotland, 2020, Theresa Kenneth MILLER, Rachael Lindsay CAMERON, Alec Elizabeth CUNNINGHAM, Jennifer Georgiev Edinburgh and Gwenhwyfer Gavan COOPER, Rachel MUNDIE, Erin Mary PETTERSON, Emma latterly with Hunt, partner of the Margaret Margaret DURIE, Katrina Margaret PIA, Giuseppe Scottish Homes, firm Burness Paull DENLI, Ezgi MURRAY, Rebecca EDGAR, Deborah PIRIE, Caitlin Mairi Catherine DEVLIN, Katie McLean FLAHERTY, Lisa SCOTT, Rebecca Julie Edinburgh. LLP, Aberdeen. Elizabeth O’DONNELL, Anna May FOSTER, Christy SCULTHORPE, Erin AGE: 87 AGE: 40 DEVOY, Lewis PARTON, Rory William FRASER, Andrea May DOHERTY, James England FYFFE, Andrew Robert Cameron ADMITTED: 1959 ADMITTED: 2004 DONAGHY, Lynne PEDDIE, Alex Anne Urquhart SEDMAN JAENSSON, PURDIE, Ross Catherine GRAY, Joshua Andrew Caroline Birgitta CARYL MARGARET JAMES HAMILTON DONALDSON, Antonia William Robert INNES, Sarah Charlotte STEWART, Agnieszka RUSSELL, Abby Jayne ANNABELLA RUST WS, Clare JAKUCZUN, Sylwia STEWART, Gulam DONALDSON, Simon SHANNON, Nicholas JASIN, Anton GODWIN (retired Edinburgh David Gregory JONES, Cameron Karima EDWARDS, Leeanna SHEARER, Emma-Jane Gordon THOMSON, Andrew solicitor), Glasgow On 10 August 2020, Frances Toni SMALL, Euan Matthew KAPAON, Jan Maria Alexander On 25 December James Hamilton FULTON, Ben Robert SMITH, Andrew Scott KENNEDY, Jade TINNEY, Stephanie 2019, Caryl Margaret Rust WS, partner GILL, Najeeb Javed SPEED, Martha Rose LEITH, Michael Margaret GRANDISON, Suzanne STEVEN, Olivia LENNIE, Alasdair Hugh Annabella Godwin, of the firm Morton WELSH, Lauren HEPBURN, Holly Anne STEVENSON, Scott LIM, Won formerly of Dumfries Fraser, Edinburgh. Fraser WHITTAKER, Conor KINNINMONT, Jade Ann McCRACKEN, Lucy & Galloway Council, AGE: 62 KIRKMAN, Laura THOMSON, Hannah Charlotte Craig Annetta Margaret McDERMID, Alistair YOUNG, Kirsten Dumfries. ADMITTED: 1982

38 / September 2020 PUBLIC POLICY HIGHLIGHTS

The Society’s policy committees • Government should engage at an role, effect and interpretation of effective participation. The Society analyse and respond to proposed early stage with professional bodies the environmental principles are provided a further briefing in advance changes in the law. Key areas affected by the proposed review important and it is expected that of the stage 3 debate on 25 August are highlighted below. For more of the objectives for regulating guidance will help achieve this. and was pleased that an amendment information see www.lawscot.org.uk/ professions and recognising Michael Clancy, secretary of the to preclude solicitors being appointed research-and-policy/ international qualifications; Constitutional Law Committee, raised as child welfare reporters was • in order to ensure proper points including: not passed. UK internal market scrutiny, internal market issues • with the bill giving power to In July, Business Secretary Alok of significant impact should feature Scottish ministers to introduce EU Sentencing young people Sharma published a white paper on in primary legislation; law into Scotland in the post- The Criminal Law Committee plans to legislate for a UK internal • Government should ensure it transition period, law that will have responded to the Scottish Sentencing market to ensure that cross-border complies with the Memorandum of been made without the involvement Council Consultation on sentencing business can continue unimpeded Understanding and Concordat on of Scotland or the wider UK, it would young people. The committee within the UK once powers International Relations. need to be scrutinised closely in the was of the view that subject to previously exercised at EU level are Scottish Parliament; certain comments in the response, returned to the UK. The white paper EU law continuity • in some cases, primary legislation the introduction of the proposed states that devolved administrations The Environmental Law and might be the most appropriate route guideline was to be welcomed will be given “unprecedented Constitutional Law Committees gave and the bill should provide for this; to provide clarity on a complex regulatory freedom within new UK oral evidence at stage 1 on the UK • at the very least, any implementing subject. It will be important to inform frameworks”. However, the Scottish Withdrawal from the European Union regulations should be subject to the public about how sentencing Government is not in favour and (Continuity) (Scotland) Bill. Alison super-affirmative procedure; decisions have been reached, argues that common frameworks McNab, secretary of the former • specific provision is needed for and to promote transparency and would be sufficient to manage committee, raised points including: Scottish ministers to issue any consistency of sentencing. divergence within the UK. • provisions in part 2 are welcome in information or justification about the The response gives detailed Having consulted other filling the environmental “governance EU law they choose not to adopt. consideration to the various issues committees, the Constitutional gap” following EU withdrawal, but raised by the proposal that the Law Committee submitted detailed could be strengthened, particularly in Children (Scotland) Bill guidelines should apply to all those comments, including these relation to Environmental Standards Several significant amendments under the age of 25 at the time of recommendations: Scotland; were proposed to the bill at stage 3 sentencing. • Government should engage in • strong collaboration between which the Society did not support, pre-legislative consultation on the the UK Government and devolved including proposed changes in clauses concerning the market administrations is important given relation to child welfare reporters, The Policy team can be contacted on access commitment, and on those the trans-boundary effects of professional misconduct for referrals any of the matters above at policy@ containing exclusions from the scope environmental impacts; to child contact services or ADR, the lawscot.org.uk of the internal market; • clarity and certainty as to the expression of views by the child, and Twitter: @Lawscot

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September 2020 \ 39 In practice

SUSPICIOUS ACTIVITY REPORTS SARs: where do they end up? Solicitors sometimes wonder what happens to suspicious activity reports they make. The Society’s Fraser Sinclair asked the National Crime Agency to explain

uspicious activity reports The International team interrogate SARs data with complex international contacts and have (SARs) must be made where to identify reports linked to a foreign territory or submitted SARs which have the hallmarks of a solicitor carrying out for foreign criminal assets in the UK. They share trade-based money laundering. regulated work knows or intelligence with other countries and handle S suspects or has reasonable thousands of inbound and outbound enquiries FS: Can you give us any examples of a legal grounds for suspicion of from across the globe. professional’s submission being used? money laundering. They remain a crucial TF: One solicitor received a request from a mechanism for engagement between law FS: And some SARs actually end up back foreign lawyer to act on behalf of their client in enforcement and Scottish solicitors; however, with local law enforcement? relation to drafting contracts for the purchase sometimes members of the Scottish legal TF: SARs which have been triaged as “sensitive” of goods from a UK company. Before drafting community query what actually happens to their are not available to general law enforcement the contracts, the UK solicitor received the full SARs and just how much use they really are. but are allocated to specialist teams; “integrity payment from the foreign lawyer, who then Law Society of Scotland AML risk manager, SARs” and those relating to politically exposed requested that the funds be paid directly to the Fraser Sinclair, put some questions to persons (PEPs) are forwarded to anti-corruption foreign supplier of the UK company in order to National Crime Agency (NCA) head of reporter or professional standards teams; and terrorist cut out the middleman. engagement, Tony Fitzpatrick. financing indicators are forwarded to the Using the UK-based solicitor adds National Terrorist Financial Intelligence Unit unnecessary steps to a trade transaction and FS: Reporters are often unsure of what actually (NTFIU) and the relevant counter-terrorist units. adds a further layer to the funds. This layering happens to SAR submissions. Can you give us The SARs database is called Elmer. All non- of high values of funds has the hallmarks of a bit of a rundown from that first moment a sensitive SARs (about 99% of total SARs) are high-end, trade-based money laundering. This SAR is opened by the NCA? made available to local law enforcement seven SAR generated an NCA alert and investigation. TF: The SAR Enquiry and Action team screen calendar days from receipt, on tools called In another example, a solicitor was in every SAR – more than 72,000 annually. They Moneyweb, Arena and Discover. These tools possession of funds which represented a charge use keywords or glossary codes to identify allow local enforcement to try to match their on a property in favour of their client as part of SARs regarding vulnerable persons, human intelligence with data contained in SARs, i.e. a divorce settlement. The reporter was aware trafficking, modern slavery and child sexual names, postcodes, bank accounts etc. that the subject had recently served a prison exploitation for fast tracking. SARs are made available to a wide range sentence for drug trafficking and that there Core responsibility of the Defence Against of law enforcement – not just the police. They was a confiscation order in force in relation to Money Laundering (DAML) team is to grant or can be shared with specialists in HMRC, local him. The DAML request was refused and local refuse requests for a “consent”. They consider councils, NHS, Trading Standards etc. enforcement obtained an uplift order. thousands of consent requests in a time critical environment, assessing legal implications as FS: How long will a SAR be kept for use in the FS: So the impact of SARs is obviously well as the welfare and impact on the reporter matching process and in other investigations? potentially far-reaching, but reporters won’t and the subject. Typically, the team refuses TF: SARS are kept on the Elmer database for six always know what has happened with them? consent where an investigation is underway with years. This information can be accessed by law TF: We are aiming to improve a number of a view to restraining assets, therefore refusals enforcement as long as the person accessing current feedback systems, and the introduction can actually help return stolen money to victims the database has the correct accreditation of better feedback loops in the SARs IT transition and deny criminals the benefit from their crimes. to access Elmer. is something solicitors can look forward to. Relevant SARs are analysed and Feedback can be limited for a number of disseminated by the Terrorist Finance team FS: What do you see as being the key benefits reasons. Accidental leakage of information could (TFT), using automated searches for keywords/ of SARs submitted by legal professionals in jeopardise investigations, or years may elapse phrases. Those searches derive from regularly particular? between a SAR being submitted and it playing a updated counter-terrorist intelligence. TF: Solicitors are vital due to the diverse areas role in an investigation. We deal with thousands Importantly, this work can identify positive they specialise in, and often solicitors are of SARs every month and most reporters will hits where the reporter is making a money privy to information that banks are not. For realise that 100% feedback is not feasible. laundering report while not realising the example, a solicitor SAR might alert us where significance it will have to a terrorist the client is due inheritance but is the subject FS: Is it possible to put a figure on how many financing investigation. of a confiscation order, or they may be dealing enforcement actions have been undertaken

40 / September 2020 involving SARs? How is success measured? TF: SARs contribute in a number of ways and some successes are hard to measure, but a ASK ASH number of successes were outlined in the most recent SARs annual report. For example, over that year £131,667,477 was denied to criminals as a result of DAML SARs. Back, and it’s weird How do I cope with the strange new office Over the last year the UK atmosphere? Financial Intelligence Unit (UKFIU): Dear Ash, everything may aesthetically look I have recently returned to work in the same, it will be far from the the office a couple of days a week. atmosphere that you were familiar fast tracked However, I am finding that the office with before COVID-19 hit. The impact environment is far from ideal as there of COVID, especially in terms of are fewer people present due to our working environment, is likely social distancing measures and this is to be longer term; things that we impacting on the overall atmosphere. perhaps previously took for granted 3,735vulnerable person SARs No one seems to want to spend like simply going to lunch with much time speaking at coffee or colleagues or having banter at the lunchtime and there is limited banter. coffee machine are unlikely to readily fast tracked I appreciate that it may take some be the “norm”. time for more “normal” conditions to However, slowly but surely, we resume, but it is still quite depressing will resume some form of normal and certain colleagues seem on edge. routines. Take everything in stages: perhaps as a first step, suggest PEP SARs to anti-corruption units 388 going for lunch with a colleague at Ash replies: You clearly, like other colleagues, are a pub or restaurant with outdoor still trying to find your bearings after seating. This could allow you to fast tracked a prolonged absence from the office, feel more at ease outwith the office and your feelings of uneasiness are environment and make you feel more quite natural and understandable. For comfortable when you return to the anyone returning to the office there office. Don’t be offended if others are will be a certain period of adjustment not so eager to socialise initially, as integrity788 SARs to anti-corruption units. required, and it is important that everyone will want to move at their you allow yourself some time to own pace. Find what level of pace get comfortable with your new you are comfortable with and try surroundings. not to stress; you managed to cope FS: Solicitors historically file proportionately You will certainly not be alone with lockdown and you will find the few SARs. What is your view on low SAR in your feelings about the new strength now to transition to the next numbers and “quality over quantity”? environment; and although phase of this phenomenon. TF: The UKFIU makes no comment on the relative volume of reports from different sectors. It is for the sectors and their supervisors to assess if the volume of SARs submitted is proportionate to the risks their sectors face. Send your queries to Ash It is important that Scottish solicitors understand “Ash” is a solicitor who is willing to Please note that letters to Ash their obligations and the relevant legislation answer work-related queries are not received at the Law Society around SARs. from solicitors and other legal of Scotland. The Society offers professionals, which can be put a support service for trainees To that end, we recommend taking a moment to to her via the editor: peter@ through its Education, Training visit the dedicated SARs page in our AML site: bit. connectcommunications.co.uk. & Qualifications team. Email ly/LSSAMLsars, where you can find some more Confidence will [email protected] information as well as our new “Getting it right be respected and any advice or phone 0131 226 7411 first time” webinar collaboration with the NCA. published will be anonymised. (select option 3). You can also visit the dedicated NCA SARs page: bit.ly/NCAsars

September 2020 \ 41 In practice The billable hour: some fairy tales Offering a perspective from Down Under, legal consultant John Chisholm challenges the belief still held by some lawyers that the billable hour is accurate, transparent and ethical

ome time ago, a law accurate. Why? Simply because time on something. At worst, we forget completely, firm partner told me that recording still requires human input to start/ sometimes for days or weeks, until the while a small minority stop automated recording. It is physically and managing partner sends an “all firm” email may have abused it, psychologically impossible for human beings, on the second last day of the month reminding S overall hourly billing is no matter how good their intentions, their all that chargeables are down and fee earners good because it is “accurate, intelligence or their software, to accurately must lodge their timesheets – then we transparent and ethical”. record time spent on anything. Law is not guesstimate it, or simply make it up. This is not the first time I have heard, or read, practised in some kind of vacuum. We are similar comments as justification for maintaining constantly interrupted by emails, texts, “The billable hour is transparent” the billable hour model, and indeed when I was colleagues, phone calls, family, not to mention Transparent = easy to perceive or detect, a practising lawyer and managing partner I used that our minds often wander, so unavoidably, open to public scrutiny similar terms myself. accurate time recording gets “overlooked”. I confess to never being sure why this There are several purported justifications At best, we record the time we think we statement has any ring of truth to it. It seems to for the billable hour, such as: spent, or we think we should have spent, be one of those sayings that rolls easily off the • it is easy to implement and understand; • it records effort; • all professionals sell time; • it is the norm as most of our competitors charge by time too; • it is acceptable to most clients, and some demand it; • our practice management system is built around time; • our firm’s measurement and rewards structure is built around time; • it transfers all risk to our clients. However I, like many, challenge the notions that charging by time is “accurate, transparent and ethical”.

“The billable hour is accurate” Accurate = to be correct, exact, without any mistakes Of course, to charge by time you must keep a record of your time. And if your contractual engagement with your client is to charge by the hour (broken down into six, 10 or 15 minute units or whatever iteration the management consultants, most of whom do not charge by time themselves, dream up), your time recording must be, at the very least, reasonably accurate. Ever since time based billing was introduced, firms of all sizes have been drilling into their fee earners (an awful expression, only exceeded by the derogatory “non-fee earners”) the importance of accurately recording billable time. Manual recording has moved to automated, as practice management vendors extol the virtues of their systems which “capture time”. Alas! Even with all the help from technology, you will still not get your time recording

42 / September 2020 tongue and if you say it often enough people Clients fear “bill shock” almost as much as a model that leverages people x time x hourly will believe it. lawyers fear their clients’ reaction to “sticker rate) reduces everything any lawyer does to a I suspect the “transparency” part stems more shock” – the shock of discovering the price series of tasks, and I ask how much longer can from some notion that “you only pay for the of their services. For so long as the legal the legal profession get away with claiming it is time spent” rather than any real openness. Of profession enjoyed a monopoly on provision ethical to ask clients to pay for an activity or a course there are times when a client knows or of legal services, and so long as clients were task when many lawyers, let alone their clients, observes when their lawyer is physically doing prepared to accept these billing models, such claim they do not even know what the task will something, such as attending the same meeting, practices were deemed ethical. (Note that billing be or how long it will take to perform? appearing in court, speaking to them on the models are not pricing models, as billing takes I have said for years that every lawyer and phone. However, as we know, and many lawyers place after the work is done whereas pricing law firm could agree their price(s) upfront with are only too quick to tell me, the real value of takes place before – and an hourly rate is never their clients – they simply choose not to. a good lawyer is their “intellectual and social a price.) If none of the above convinces you about the competencies” (often called “thinking”). Until But as we know, law world has changed. ethical challenges of the billable hour, perhaps technology invents a chip that is inserted in our Lawyers no longer retained the same monopoly, have a go at applying the Golden Rule: If hourly brain and somehow linked to a client matter the profession became more deregulated in billing were so ethical, would we want it to number to track when we are actually thinking many jurisdictions, and more and more clients be universal? about the matter and that matter only, genuine wanted and insisted on greater certainty and transparency has a long, long way to go. predictability in their fees. Perceptions and Waiting till change is forced? acceptance of what constitutes ethical and I have never hidden my distaste and my “The billable hour is ethical” unethical conduct change with the times, prejudices regarding the billable hour and the Ethical = morally good or correct, in particularly as knowledge increases and “we sell time” culture that has permeated most accordance with the rules or standards community and business norms evolve. The professional firms, but especially law firms, for right conduct or practice medical profession is a prime example; ditto over the last few decades and the deleterious Here is where it gets really interesting. The builders, architects, and engineers. And so it is effects this has had, and continues to have, on ethical justification for the billable hour seems and should be with the legal profession. the reputation and values of the legal profession to be intrinsically tied to the rules or standards For years there have been any number of and those that work within it. It is hard to believe in the legal profession (originally set by the articles, posts, surveys and research studies that there are some out there still claiming its profession itself). It has been an accepted undertaken by many participants, including virtues, but they have their own vested interests practice for so long to bill retrospectively for members of the judiciary, bringing into question in ensuring this model survives long after its our services, either by an agreed hourly rate or the ethics of the billable hour and what perverse “use by” date. some sort of scale of fees, that the profession behaviours it encourages and entrenches into The tide has turned, I am pleased to say, has convinced itself that this practice must firm cultures. but there is still a long way to go before we be ethical. eradicate the billable hour, and its partner in Both these retrospective bases meant that, Shaky ground? crime the timesheet, from the legal profession. essentially, clients and lawyer had no way of In 2017 Ivy B Grey, writing in the ABA Journal While an ever increasing minority have seen knowing what the fees were in advance because under the title “Not competent in basic tech? the light to a better way of practising their craft the task, activity based solely on time, had not You could be overbilling your clients – and be for the benefit of not just themselves but their yet been undertaken. on shaky ethical ground”, stated: “There are no clients, the majority of lawyers, instead of being Regrettably, as in any industry or profession, business, practical, or ethical excuses to avoid proactive and changing their business and there are a minority who choose to take learning about, understanding, and adopting pricing model for the better, wait until market advantage of these accepted retrospective technology. Yet, at the same time, we must forces impose change on them. billing practices. Time based billing tempts recognize that there are perverse incentives In the meantime, however you care to otherwise ethical professionals to do unethical that encourage lawyers to refuse to learn justify the continuance of time based billing, if things, and the legal profession well knows that technology – the main one is the billable hour. you use terms like “accurate, transparent and behaviours such as block billing/rounding up, Increased financial rewards for increased hours ethical” you must accept that increasingly your hoarding and multi-billing exist much more than encourage lawyers to bill as much as possible customers, and indeed your team members, see we are prepared to admit. for every matter. these justifications as self serving rhetoric that Even though retrospective billing is arguably “It’s an incentive structure where lawyers are simply does not stand up to any objective and pretty much the perfect crime, the profession working in opposition to their clients’ interests. reasonable examination. (and in many jurisdictions, the appropriate “The seemingly innocuous decision to skip We were taught at an early stage that regulators) introduced codes of conduct or technology training can lead to overbilling. And ignorance of the law is no excuse. Feigning rules to try to ensure clients were protected if you are deliberately avoiding technology ignorance of better business and pricing as best they could be, with anyone aggrieved because it means that you can bill more, then models is no longer an excuse for the legal by the fees charged purportedly able to have you are definitely overbilling. Do not confuse profession either. those fees assessed, or “taxed” (a quaint legal this with a clever billing scheme. This is not ‘just term) to see that they were in essence fair and business’ – this behaviour is an ethical breach.” reasonable. The same logic can and should be applied to One of the inherent problems even with an time based billing. independent third party assessment is that it too The late Dr Michael Hammer (see John Chisholm, B Juris, LLB, is a former is an after-the-event determination, and often hammerandco.com) once said: “a professional managing partner and chief executive of two law of little comfort to the client if they were not is someone who is responsible for achieving a firms in Australia, and co-founder of The Innovim expecting the quantum of such fees in the result rather than performing a task”. Group, an international pricing consultancy first place. Oldlaw’s business model (I define Oldlaw as w: innovim.com.au

September 2020 \ 43 In practice

ANTI-MONEY LAUNDERING AML: making the most of your audit Ian Wattie proposes some criteria for carrying out an anti-money laundering audit – which, properly conducted, should enhance a firm’s good governance

ffective implementation been updated to take account of any changes in of the Money Laundering, technology, the firm’s business model or practice Terrorist Financing and areas, which should in any event be reflected in Transfer of Funds an updated AML risk assessment. (Information on Payer) For the micro audit, best practice would E Regulations 2017 (the “AML require a regular review – perhaps on a monthly Regulations”) requires basis – of a selection of client matter files, to certain internal controls to be put in place in any assess whether and how the firm’s PCPs are regulated organisation, including law firms. One of being implemented. Some larger firms will have those controls is a requirement in some cases for an in-house audit function that can fulfil this role. an audit function. This article examines the audit While smaller firms may not be able to sustain function and offers some guidance as to its use. that level of permanent resource, they should Regulation 21 states that, where appropriate still consider having micro audits carried out with regard to the size and nature of its business, regularly, either by an experienced and senior a firm must establish an independent audit practitioner in their firm who commands internal function with the responsibility “to examine and respect, or by an external consultant. Micro evaluate the adequacy and effectiveness of the audits should look at a client file in its entirety, policies, controls and procedures adopted by or alternatively adopt a thematic approach with [it] to comply with the requirements of [the a particular focus on any area that the firm may AML Regulations]”. see as of heightened risk (e.g. source of wealth, The audit function may be an external or proper completion of risk assessments etc). internal resource; but where it is internal, it and procedures (“PCPs”) in response to the must be independent of the team responsible regulations (let’s call this the “macro audit”); Positive potential for ensuring compliance with the regulations. • secondly, to assess how well those PCPs are Overall there are two key points to have in mind. The auditor must have the necessary authority being implemented in practice (the “micro audit”). One, it is important that the firm has given proper to access all relevant materials (policies, client Put crudely, it is one thing to have a shiny set thought as to the scope of the audit function files, internal procedural notes etc), to make of written policy and procedural documents, that is appropriate for the size and nature of its recommendations and to monitor compliance. but they are of little value if they are not business, taking into account its obligations under For some firms, bringing in an external being properly adhered to. A firm needs to the AML Regulations and the degree of exposure resource to provide challenge to the internal be able to demonstrate good implementation it has identified in its AML risk assessment. compliance function may be more efficient than and compliance. Separately, there needs to be in place a clear the artificiality and cost of creating a second By now, most firms should have completed – process – e.g. by an upgrade of systems, change independent internal team. or at least have in hand – a first macro audit of of procedures or internal controls, or enhanced It would be prudent to record (in a board their PCPs, and they should be in the course of training (or maybe a combination of these) – minute or the like) the deliberations, and implementing any remedial action identified in which ensures that the issues identified in any associated reasoning, together with all material that audit. The macro audit should be updated audit are properly and promptly addressed. factors that justify the firm’s response to the periodically, the particular timeframe being The AML audit function should not be regarded requirement for an audit function, including dependent on the size and nature of as a burden or a tick box exercise. Properly decisions as to how that function is resourced, the business. resourced and culturally embedded in the firm its duties, and accountability within the firm’s Any update audit should look at whether the with strong support at senior management management structure. recommendations of previous audits have been level, it’s a vital tool to help ensure that potential implemented; whether any new requirements legal, financial, ethical and reputational traps Twin objects of the regulatory authority (the Law Society are avoided. Broadly speaking, in the context of the AML of Scotland or, in England & Wales, the SRA) Regulations the audit function can be seen have been put into effect; whether changes Ian Wattie, former managing partner of Burness as having two objectives: in legislation or best practice (e.g. as a result Paull, is a consultant with a focus on AML • first, to review the infrastructure a firm of any reported cases) have been taken into compliance. This article reproduces a blog has put in place – i.e., the policies, controls account; and also whether the firm’s PCPs have by the author

44 / September 2020 CLIMATE CHANGE COP26: working in support A “call to arms” to the profession to become involved, as the Society sets up a group on climate change ahead of the now delayed global summit in Scotland

he United Nations Climate Change Conference (COP26), “COVID-19 has seen a seismic shift in our delayed by COVID-19, is now individual behaviours and social attitudes. being held in Glasgow from The importance of planning for global T 1-12 November 2021, in partnership between the catastrophes has now been clearly established” United Kingdom and Italy. The holding of COP26 is significant. It has been described, scientifically and politically, and in policy matters, and the Society as a cut carbon and cope with the impacts of as a critical moment to focus attention on the professional body. climate breakdown. climate change agenda, especially as countries’ Legal representation on the working group concentration on the pandemic has inevitably demonstrates the universal nature and What is the working group planning? consumed full attention to the detriment of importance of climate change, with cross- The working group is currently developing tackling climate change. cutting policy interests spanning planning, its work programme. Its principal aim is to COP26 will monitor progress towards the property, tax, energy, environment, competition, raise awareness of and interest in COP26 delivery of the commitments made at the finance and criminal. The Society’s committee by building on the profession’s knowledge Paris Agreement in 2015. These commitments interests fit well into the UK’s key COP26 and understanding of climate change issues. include strengthening the global response to priorities of: Adaptation & Resilience; Nature; We will publicise relevant events of interest the climate change threat by keeping the global Energy Transition; Clean Road Transport; such as the Global Climate Change Week temperature rise below 2oC above pre-industrial and Finance. (globalclimatechangeweek.com/), which levels, with efforts to limit the temperature Some legal interests in climate change takes place from 19-25 October 2020, where increase even further to 1.5oC (unfccc.int/ issues are obvious. Solicitors advise clients academic communities are encouraged to process-and-meetings/the-paris-agreement/ on the implications arising from the Climate engage with each other and with policy makers what-is-the-paris-agreement). COP26 unites Change (Emissions Reduction Targets) on climate change action and solutions. action by strengthening countries’ ability (Scotland) Act 2019. That Act sets important globally to handle the impact of climate change. net zero emissions targets for the reduction of What can you as a member of the greenhouse gas emissions, providing for advice, profession do? What is the Society doing? plans and reports relating to those targets. COVID-19 has seen a seismic shift in our Inspired by the Scottish location for COP26, Significantly, it outlines Scotland’s delivery individual behaviours and social attitudes. The in August 2020 the Society set up a working commitment on the Paris Agreement, coming importance of planning for global catastrophes group to consider COP26 and climate change. back to the objectives of the COP26 agenda. has now been clearly established, with the COP26 provides us with opportunities to Some policy interests may be less clear cut. consequences of delay apparent to all. Not all consider our own responsibilities to climate Public safety and security implications arise, COVID-19 inspired changes have necessarily change and look at how we are affected as given the size of COP26 and the number of been negative, with for example the reduction in individuals both personally and professionally, attendees expected. Police Scotland anticipates air travel and an increase in cycling both widely as a legal profession in representing clients that many more officers need to be recruited, seen as benefits. With much greater working with consequences for the throughput of from our home environments too, attendance normal criminal investigation/court business. at virtual events and meetings to engage in Given that the venue at the Scottish Events discussions can be easier. Campus in Glasgow is to be handed over to the To plan how to deliver on our role in United Nations for the conference’s duration, combatting climate change, we welcome crimes taking place will fall to be investigated hearing from members with views, suggestions by Police Scotland but prosecuted under and activities to promote discussions on how international law. With climate change as a we as the Scottish legal profession with a highly charged and emotive issue, control of focus on COP26 may best become involved fringe events and protests outside the venue in contributing to the climate change debate. could cause significant disruption to businesses. Contact Alison McNab or Gillian Mawdsley Poverty and financial issues arise where for more details, or email us at policy@ funding is being provided to help poorer lawscot.org.uk countries cut their greenhouse gas emissions. The UK has committed to provide £11.6 Gillian Mawdsley, Policy team, billion from 2021-25 to help poor countries Law Society of Scotland

September 2020 \ 45 In practice

RISK MANAGEMENT Corporate and commercial risks: communication In part one of a two-part series covering scenarios which can crop up for solicitors dealing with corporate and commercial advice, Matthew Thomson looks at aspects of communication

Communication risks • Has the client given some level client actually possessed. An email This can often be exacerbated A failure to communicate, or of feedback to us indicating that acknowledging the instructions and by confusion as to the client. In inadequate communication, lies they appear to understand the key explaining the potential downsides corporate matters particularly, there at the heart of many complaints terms of the document and the would have assisted the solicitor’s is the possibility of inadvertently and claims against solicitors. Even outcomes which will be delivered position. Whilst that approach could acting for the same client in different when a claim appears to have a well by the document? be categorised as “back covering”, it capacities (shareholder, director, defined primary causative factor, it • Has the client seen and is really simply a further strand of employee, trustee), all of which may is often the case that the underlying reviewed a final draft of the the communication process. have different interests in a particular risk issue is rooted in communication document prior to signature? Perhaps through pressure of time matter. Failing to understand what failure. For a more detailed or the need to finalise commercial the desired outcome is for that client explanation of communication risks, Case study aspects of the deal, there can be in their particular capacity can lead see our risk management article at A client maintained that they had situations where verbal advice is to risk exposure. Journal, April 2019, 44. never been properly advised on lost in the noise of the transaction. In all corporate and commercial the desirability of adding certain Setting out some reminders in Case study transactions, the solicitor is events of default in relation to a writing can often be a helpful Solicitors were instructed by dealing with an individual. They vendor loan arrangement. The trigger to clients to consider the company directors to document a may be the client or simply the solicitor maintained that discussions position further. buyback of shares. That buyback representative of the (corporate) had been undertaken between the would have allowed one of the client. It is worthwhile bearing in parties to the transaction directly Client management directors/shareholders to exit mind that a key part of managing and, for a variety of commercial It is obviously critical in any the business. Initially, the terms communication risks is to reasons, the advice from the corporate/commercial transaction of exit had been agreed and understand the audience (i.e. the client (who was an experienced to understand what the client wants documentation was duly drafted. recipients of the advice). Although businessperson) had been to take in terms of outcomes. This is such a It then became apparent that this should not be surprising, a “light touch” approach to the basic point that it can be overlooked. the exiting shareholder wished there are many clients who, while loan arrangement. The solicitor to renegotiate the terms of the sophisticated businesspeople, are recalled that a discussion had been Case study deal. This was, in part, due to a not experts in corporate law. This undertaken with the client about Where the engagement letter failed difference of opinion as to the value lack of knowledge may not be default events additional to non- to explain adequately to the clients contributed over the years by the apparent from initial discussions payment which would trigger early the limits of the tax advice being exiting director. Eventually, this and it is a mistake to overestimate repayment of the loan, but that the given by the solicitors in connection resulted in the company solicitors the level of knowledge that even an instructions had been not to add with the transaction, the firm in indicating the terms of a new apparently experienced purchaser these. There was no supporting file question was left exposed to a deal based on a revised position of legal services may have. note or email regarding the position. claim in relation to matters which resulting from alleged breaches It may not be necessary to Although the lack of recording of the client had understood were of director’s duties by the exiting establish some type of formal the instructions was problematic, within the firm’s scope of work and director. That director then made checklist system, but it is important the solicitor appeared to have had therefore not been referred for an allegation of conflict of interest. to make sure that key elements regarded the client as having a review to the accountants which Although not directly leading to a of communication are present in much better understanding of the the client had engaged to advise on claim, it serves as a useful reminder every transaction. This could risks in the transaction than the other tax matters. that such issues still arise. mean a thought process along the following lines: File management • Have we explained the key All practice areas generate large provisions of the draft document, “Inadequate communication is at the amounts of paperwork (whether particularly drawing the client’s actual physical paperwork or attention to unusual conditions or heart of many complaints. Even when a the electronic variety). Corporate transaction specific conditions? claim appears to have a well defined transactions are no different and • Have we explained any negative can generate significant amounts outcomes that could result from the causative factor, the underlying risk issue of paperwork in a fairly short execution of the document? is rooted in communication failure” space of time. It can be difficult to

46 / September 2020 manage a process with multiple the prime cause of the claim is, strands without having a disciplined or is attributable to, the fact that approach to file management. There the insured acted in breach of the are a variety of ways to accomplish conflict of interest rules (B2.1.2 and this, either through document B.2.1.5), the self-insured amount will management systems or utilising be double the standard amount. strict version control outside of such systems. All practices Case study will have their own preferences A corporate client acquired the share and requirements. It is, however, capital of a separate client company. essential to understand that from Following the acquisition, the a risk management perspective, former shareholders of the acquired managing the file is key to reducing company raised a claim against the risk exposures. practice, alleging that the firm was This can be challenging in a in a conflict of interest. The claim corporate transaction where much was successful. It is a clear conflict negotiation can be at the last to act on both sides of an acquisition minute and there is a temptation to of share capital. Where one client of let administrative matters such as the share purchase agreement. A example, unless the shareholder a firm wishes to acquire the share file notes slide. In most corporate significant amount of documentation rights and obligations are equal, the capital of another client, the same transactions there are last-minute had been produced by the sellers in same firm should not act for all of firm should not act for both – even in negotiations and changes to agreed a piecemeal fashion. All of this had the shareholders. In other words, formalising the terms of an agreement terms, some changes only being been delivered electronically. The if shareholders are to be treated reached by the parties themselves. agreed during the course of the sellers’ solicitor had been unable differently in a shareholders’ The firm can act for one of the parties, completion meeting. By their very to keep abreast of the information agreement, they should be but the other party should be told in nature, some of these amendments being produced and had overlooked separately represented. The firm writing to take separate legal advice may be needed “on the hoof”. a number of disclosure items. might be able to take instructions before signing any documents issued Recording the reasons for these Whilst there are a variety of from one of the shareholders on by the solicitors. and the advice given to the client electronic systems which can be the terms of a draft agreement, In a share acquisition, it is also may be essential in defending any utilised in a disclosure exercise, the but should make it clear to the worth considering whether the subsequent claim. Obviously, some fundamentals of the process remain others that they should take firm has previously acted for the consideration has to be given to the the same, namely that there must separate independent advice on the target company, or for one of its practicalities, but a post-completion be a review process in a structured agreement before signing it. directors, as in these circumstances wash-up meeting where these manner. Even where there are no As touched on earlier, conflict the firm may possess confidential points are recorded before memories sophisticated electronic systems, issues may also arise in relation information which is relevant to become clouded can be beneficial. there has to be a methodology to to shareholders, directors and the the acquisition. ensure that all documentation is company, particularly in small Case study reviewed, classified as to relevance private companies, where it may Matthew Thomson is a client A disposal by way of share sale and actioned accordingly. be difficult to differentiate between executive in the Master Policy team had been undertaken. The solicitor the interests of the three parties. at Lockton. In part two, next month, acting for the sellers, in the absence Conflict of interest Solicitors should be clear, from the he will look other types of risk for of the assistant who normally dealt Conflicts of interest can, of course, outset, who they are acting for, be solicitors dealing with corporate and with this, had managed the process arise in corporate and commercial it the company or the individual commercial work, such as drafting of disclosure against the warranties matters. In relation to the drawing shareholders or directors. errors and acting outwith core which the buyer had sought in up of shareholder agreements, for It is worth noting that where competencies.

FROM THE ARCHIVES

50 years ago 25 years ago From the report of the proceedings of the Society’s 1970 AGM, From “An American Arrives”, September 1995: “The lawyers I meet are September 1970: “Mr B. M. Hughes (Glasgow) said that this matter was earnest, pleasant, focused and polite. I have no experience of a formally one which had exercised himself and the members of the Glasgow Bar divided Bar – or, should that be a formerly divided one? – and I am Association for a great number of years... At the moment it appeared intrigued by the arrangements, somewhat surprised by the apparent that the Lord Advocate had the total and final say in all appointments to ease with which they work with one another. There seems the Bench... Of the seventy-five judicial appointments in Scotland at the a common core of respect and cooperation. This is refreshing. I present time some seventy were occupied by members of the Faculty of do not yet know if this is an expression of the national character, Advocates... This... was a matter on which the Law Society should many professional skill, or simply a lack of the Malthusian stress to which I years ago have taken a firm stand and they must do so now.” am accustomed.”

September 2020 \ 47 WORD OF GOLD Keeping the dream alive Morale and success are two sides of the same coin, Stephen Gold writes

Good times and bum times, I’ve are valued. This is not really about money. Going it alone is folly. Wise leaders cultivate seen them all, and my dear, I’m Pay is important, but warmly expressed a personal board from inside and outside the still here.” So begins Stephen recognition of effort and achievement matters business, with whom they can be completely “ Sondheim’s hymn to survival, more. A handwritten note saying “thank you” honest, share their doubts and who will give immortalised by Elaine Stritch can be immensely powerful. They celebrate them fearless, objective counsel. in his wonderful musical small wins as well as the big, and make sure Few phrases lift the spirit of leaders and the Follies. It’s a line that speaks to this moment. We they are always encouraging. Nothing is more led more than “We are all in this together, and are battered and bruised by all that COVID-19 has demoralising than: “That was a good job, well together we will overcome.” There will never be a thrown at us, its effect intensified by our shock done, but you still need £10k to make target this better time to prove it. that it descended so fast from a clear blue sky. month.” They seek the views not just of direct But we are still here. reports, but of colleagues at every level. A good Hope and fear compete for our hearts. The question is, “What would you do in this business Stephen Gold was the founder and senior partner animal spirits of capitalism are reviving. Stock if you had my job?” When they are given good of Golds, a multi-award-winning law firm which markets have bounced back. A vaccine may not ideas, they act on them and make sure they grew from a sole practice to become a UK leader be far away. A tsunami of cash has surged from give credit at the time, not months later in a in its sectors. He is now a consultant, non-exec the vaults of Government and central banks. Still, performance review. and trusted adviser to leading firms nationwide nobody expects anything but tough times ahead, They show their team trust and respect and internationally. as furlough schemes end, unemployment rises, by sharing information with them, especially e: [email protected]; and businesses make fundamental decisions financial information about how the firm is t: 0044 7968 484232; w: www.stephengold.co.uk; about who they will need and how they will performing. Sometimes I have an uphill struggle twitter: @thewordofgold operate in the future. persuading clients of the value of transparency. “We have nothing to fear, but fear itself,” Being defensive or secretive is a big mistake. As said President Franklin D Roosevelt. He knew Sam Walton, the founder of Wal-Mart, said, “The instinctively what the Nobel Laureate Daniel more they know, the more they’ll understand. Kahneman proved decades later, that humans are The more they understand, the more they’ll care. hardwired to value the avoidance of loss more Once they care, there’s no stopping them.” highly than the prospect of gain. Right now, in the Good leaders know the importance of clarity, battle between fear and hope, fear is playing a especially in hazardous times. Nothing breeds strong hand. Polling by YouGov in August shows fear more than uncertainty, but at the same time, that 92% of us expect unemployment to rise, and people will deal well with extraordinary levels 62% fear being laid off. In more than the obvious of difficulty if they are fully informed, see that ways, this has consequences for the way law their leaders are being straight with them and firm leaders frame their task. have bought into a well articulated strategy to Bruce MacEwen recently put it well: “Critical overcome it. One never wants to be like the army is recognising that whereas ‘leadership’ six officer of whom it was once said at appraisal: “His months ago was defined as and viewed through men would follow him anywhere, if only out of a the lenses of strategy, business, culture, and sense of morbid curiosity.” people, now it’s as much or more about morale, which means truly listening and connecting with It’s lonely at the top people, and admitting your own vulnerabilities.” Finally, as MacEwen says, good leaders are unafraid to admit that sometimes they feel Morale philosophy vulnerable. Too often, vulnerability is dismissed as Raising morale is easy and obvious to say; something shameful and weak. But it is a natural harder to do. We can’t all be Churchill. But in the state, the hallmark of a thinking, sentient person. workplace, we are motivated far more by actions Morale remains high, even in great adversity, and interactions than stirring speeches. In firms when leadership is authentic. People can smell where morale is high, leaders behave in clearly it when their leaders are feigning strength and observable ways. spinning them a line to keep them happy. They make a point of recognising their Leaders have an obligation to themselves, as colleagues and demonstrating that their efforts well as the business, to care for their own morale.

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PRACTICE REQUIRED READY TO RETIRE? SUCCESSION PLANNING ISSUE? WANT A SAFE PAIR OF HANDS? HIGHLY TALENTED AND BUSINESS ORIENTED LAWYER SEEKS APPROPRIATE CHALLENGE GEOGRAPHICAL LOCATION UNIMPORTANT PRACTICE POTENTIAL – FUNDAMENTAL TELL ME ALL ABOUT YOUR “UNPOLISHED GEM” RESPOND WITH ABSOLUTE CONFIDENTIALITY In writing to: BOX No. 2128 Email: [email protected] Tel: 07970 040 040

September 2020 \ 49 CONVEYANCING SOLICITOR

As one of the largest Law Firms in the south west of This is an excellent opportunity for someone looking to Scotland, we offer a diverse range of legal services to an establish themselves in the local community and to be an extensive client base across Dumfries and Galloway. integral part of our friendly, growing and forward-thinking legal practice, where good career progression prospects are An opportunity has arisen for an experienced Conveyancing on offer. Solicitor to join the specialist Property Department of our busy Dumfries office on a full-time basis. The benefits of the work-life balance to be enjoyed in Dumfries and Galloway are well-famed. We are surrounded The successful candidate will possess a “can do” attitude by breathtaking countryside where the hills, rivers and and be capable of handling all aspects of residential forest parks provide the ideal setting for you to explore by conveyancing work. The ability to undertake commercial foot, bike or boat. Beautiful beaches are only a short drive conveyancing, agricultural transactions and leasing (both away along the stunning Solway Coast. The region is also residential and commercial), would be advantageous. home to many excellent golf courses, mountain bike centres and the Galloway Sailing Centre. Working closely with a Partner-led team of Solicitors and other qualified staff, the successful candidate will also enjoy the support of our experienced Estate Agency and secretarial teams. We are looking for an innovative and driven Solicitor who can make a positive contribution to Interested applicants should send their CV and a covering developing our business. letter / email to:

Mrs Sharon Galloway, Partner JHS LAW 8 Bank Street Dumfries DG1 2NS

Email: [email protected] • Tel: 01387 739 000

Business / Branch Office Opportunity 125 Bruntsfield Place, Edinburgh, EH10 4EQ

Due to the proposed retirement of our incumbent partner later this year we are offering to either transfer our Estate agency and Legal services business which currently operates successfully from the offices or to assign the current Lease subject to agreement with the Landlords.

We consider the office would serve the requirements of a larger firm seeking to expand its coverage into this popular area or equally for a business start-up looking for a prominent location in a high footfall location. Andersonbain have traded for almost 7 years from the premises and as a consequence we would expect any transferee to benefit from our excellent connections and reputation with the local community.

All serious approaches will be considered and these should be directed to :-

Peter D Anderson, Andersonbain LLP, 125 Bruntsfield Place, Edinburgh, EH10 4EQ [email protected]

50 / September 2020 Celebrating over 24 years as Scotland’s only specialist recruitment company dedicated to the placement of lawyers

FWA In-houseTM Focus

n recent years, for a variety of different reasons, there the financial crisis by reviewing and expanding their has been a significant increase in the number of internal legal capabilities. lawyers, at all levels and stages in their careers, keen I Each of the Frasia Wright Associates’ In-House Track™ to pursue in-house roles. There has also been a greater Specialist Consultants is familiar with placements demand in the legal recruitment market for lawyers at all levels across the board - in private practice, in- looking to make the move in-house. house or within the public sector. They will be able to The in-house sector is diverse and presents a wide answer any questions you may have, provide relevant range of industry-specific recruitment needs and this and appropriate advice or, ultimately, assist you in the sector has seen rapid expansion in Scotland in recent process of securing the offer which will most advance years. In the light of the challenges of the current your career aspirations, allowing you to progress in the downturn, many organisations are responding to most appropriate direction for you.

For a confidential discussion about your career opportunities in the market, please contact Frasia ([email protected]) or Cameron ([email protected])

Frasia Wright Associates, The Barn, Stacklawhill, By Stewarton, Ayrshire KA3 3EJ T: 01294 850501 www.frasiawright.com

© FWA (Scotland) Ltd t/a Frasia Wright Associates 2019. FWA (Scotland) Ltd t/a Frasia Wright Associates acts as an employment agency

FWA NQ Outlook TM FWA CareerGateway TM FWA CareerWatch TM FWA PartnerSelection TM FWA In-house TM FWA InterimSolutions TM FWA PSL TM

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