Civil solicitor advocate Roberton: the lessons of Family businesses: QCs: why so few? recent events a special need for advice P.16 P.18 P.24

Journal of the Law Society of Scotland Volume 65 Number 7 – July 2020

Safe to come back? As our workplaces open up again, what is expected of employers to safeguard health?

Click here to see Peter’s welcome message

Publishers Editor The Law Society of Scotland Email > [email protected] Atria One, 144 Morrison Street, Read > www.lawscot.org.uk/news-and-events/blogs-opinions/ Edinburgh EH3 8EX t: 0131 226 7411 f: 0131 225 2934 Follow > twitter.com/jlsed e: [email protected]

President: Amanda Millar Vice President: Ken Dalling Jury out? Chief Executive: Lorna Jack What to do about jury trials? Of all the and others affected will also suffer the Online resources issues to have faced the legal profession more if cases are left hanging. www.lawscot.org.uk due to COVID-19, this one is perhaps the Is the problem essentially COVID- www.journalonline.co.uk most intractable. related, or was there already a serious www.lawscotjobs.co.uk The essentials are by now familiar. backlog due to longer term underfunding, Subscriptions This month will see the first solemn as some allege? Either way, promises of Practising Certificate (inclusive cost) £680; trials in Scotland since March, but only extra money, if forthcoming, would not in Non-Practising Members (UK and Overseas, initial exercises to test social distancing themselves provide a solution. Logistical inclusive cost) £315; Annual subscription UK £84; safeguards, each taking up two or three issues remain. Overseas £108; Trainees Free regular courtrooms plus other facilities. A proposal currently being promoted Editorial Meanwhile Lord Carloway, in a statement is “Nightingale courts”, borrowing from Connect Publications (Scotland) Ltd which praised the courts, and court users, the name of the temporary hospitals set Editor: Peter Nicholson: 0131 561 0028 for progress on other fronts, issued a up to prevent the NHS being overrun at e: [email protected] stark warning that proposals put the height of the pandemic. Back in Advertising: Elliot Whitehead: 0131 561 0021 forward to facilitate more trials April the Scottish Government e: [email protected] amounted only to “tinkering at suggested the use of non-court Review editor: David J Dickson the margins” of a backlog that buildings was unworkable Online legal news: could reach 3,000 cases by due to practical difficulties, e: [email protected] next March. though in a paper in late May Other Connect Publications contacts, While not calling for the Society was still arguing it telephone 0141 561 0300 juryless courts, the Lord should be explored further. It is Head of design: James Cargill (0141 561 3030) President was clear that a regrettable that we appear to be [email protected] “political solution” will be required. no nearer a decision on what can be Editorial board But the legal profession, and not just achieved, let alone any action on this front, Austin Lafferty, Lafferty Law defence lawyers, appears united that the when some additional provision is almost Andrew Todd, Springfield Properties Plc jury system is sacrosanct, if possibly with certain to be needed, whatever else is done. Philip Hannay, Cloch Solicitors fewer jurors in less serious cases. “If we It may turn out that, as with the schools, David Bryson, Baillie Gifford Ayla Iridag, Clyde & Co were just safeguarding our incomes, we something like full capacity can be Kate Gillies, Harper Macleod LLP would be pushing for judge-only courts,” is achieved sooner than was being predicted the message. “But the principle of keeping only recently. But even on the best case the system is more important.” scenario for control of the virus, special At the same time we cannot overlook measures will be needed for an extended that justice delayed may end up being period to tackle trials already pending. justice denied. For accused, particularly if Unless a workable alternative is agreed, Disclaimer on remand, human rights issues will come and urgently implemented, constitutional The views expressed in the Journal of the Law Society of Scotland are those of invited contributors into play sooner or later, and Holyrood tradition may find itself in opposition to and not necessarily those of the Law Society of cannot legislate those away. Complainers practical human rights. Scotland. The Law Society of Scotland does not endorse any goods or services advertised, nor any claims or representations made in any advertisement, in the Journal and accepts no liability to any person for loss or damage suffered as a consequence of their responding to, or placing reliance upon any claim or representation made in, any advertisement appearing in the Journal. Readers should make appropriate enquiries and satisfy themselves be fore responding to any such advertisement, or placing reliance upon any such claim or representation. By so responding, Contributors or placing reliance, readers accept that they do so at their own risk. On no account may any part of this If you would like to contribute to Scotland’s most widely read and respected publication be reproduced without the written permission of the copyholder and publisher, legal publication please email: [email protected] application for which should be made to the publisher.

© The Law Society of Scotland, 2020 Alison Tony Tom Ken Ruth ISSN: 0458-8711 Weatherhead Jones QC Marshall McCracken Croman Total Net Circulation: 13,689 is a partner is a partner and is solicitor is a family is a partner (issue specific May 19) with Dentons civil solicitor advocate business with Macnabs, Av. Net Circulation: 13,628 (Jul 18 - Jun 19) UK & Middle advocate with member of the consultant Perth East LLP Brodies LLP Society’s Council and teacher

July 2020 \ 3 THE JOURNAL OF THE LAW SOCIETY OF SCOTLAND VOL.65 NO.7 – JULY 2020

Perspectives Features Briefings In practice

04 Journal online 12 27 Civil court 38 Professional news Our website exclusives for July A health related Q & A for Case management, and more COVID research; Innovation employers as workplaces Cup; SLAS; jury trials; policy 05 Guest view 28 Licensing reopen post-COVID-19 work; SLCC; specialists Thembe McInnes Farewell, with a retrospective 41 The Word of Gold 06 Letters 16 29 Planning How to listen to clients Life after COVID-19; Reviews Tony Jones on his path to QC Revised rules under COVID-19 as a civil solicitor advocate; 42 Anti-fraud: IT or not? 07 Offbeat 30 Insolvency and why are there so few? When old ways may be better Quirky news; Profile column New legislation, not all temporary 44 Trauma informed training 08 President 18 30 Tax New video on domestic abuse Help for members; engagement Tom Marshall revisits the HMRC action on furlough fraud with Government debate on the Roberton report 45 Creative child contact 32 Immigration in light of recent events Some Family Mediation ideas “No recourse to public funds” Regulars 46 Risk management 22 33 Discipline Tribunal Client and transaction vetting Ruth Croman’s first experience Four recent cases under COVID-19 09 People of family law arbitration 34 Property 31 Consultations 48 Appreciation The new land reform right to buy 40 Notifications 24 J Haldane Tait, solicitor, editor, 49 Archive Could you be a family business 37 Property auditor and friend to many 50 Classified adviser? Ken McCracken asks PSG: new protocols 50 Recruitment 49 Ask Ash A mum struggles to fit in work 26 The Scottish Solicitors’ Help from the Benevolent Fund offers help Scottish Solicitors' Benevolent Fund: Page 26

ONLINE INSIGHT

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

White privilege: Workplace harassment: Territorial scope, again: Copyright, charities what should we do? the third party issue Lawson revisited and creative commons The Glass Network founder Sam Middlemiss considers The latest case on the territorial Fergus Whyte offers a Drew McCusker believes that the law on liability for sexual scope of UK employment law summary of the things that white members of the profession harassment in the workplace offers an opportunity to examine charities might want to think need to take action in relation by non-employees, in the the correct approach to a 2006 about in relation to copyright to racism – by celebrating context of a Government House of Lords case on which generally and in applying diversity and actively dismantling Equalities Office consultation doubt has since been cast, Kieran creative commons licences institutional racism. on possible reforms. Buxton argues. to their intellectual property.

4 / July 2020 OPINION Thembe McInnes As Black Lives Matter raises the profile of BAME issues, in what senses should the colour of a person’s skin matter in the Scottish legal profession? Are there things we need to become more comfortable with?

oes it matter that I am Black? law students to go to a school where family heritage and private As a society our first instinct is to say benefactors are not a thing. I need it to be OK for invitations to no, of course it doesn’t. We tell our children networking events to be sent regardless of faith. Presence is surely D that it doesn’t matter what colour their skin is, more important than the contents of the glass in hand. that kindness and love are all that matter. Our I need everyone to get comfortable being uncomfortable. As universities are melting pots into which students legal professionals, we need to own our lack of understanding of diverse ethnicity, race, gender and socio-economic background and experience. Because it is in this space that we listen, we learn, are welcomed in the hope that they emerge with a wealth of and we begin to empathise. And when we know better, we do knowledge, experience and friendship. Our graduates embarking better. Our population is changing; BAME culture is forming an on their careers are reassured that employee selection is about intrinsic thread in the tapestry of competency, demonstrable experience, behaviours and cultural being Scottish. So too it should fit. Race does not come into it. be reflected in the discussions, We develop our CSR agendas, our personal development opportunities and progression programmes, our business development networks, and our of our BAME solicitors. Our people to reflect the culture of our business. Are we merely profession needs to acknowledge providing our unconscious bias a warm blanket under which to that diversity and inclusion mean take cover? Because what do we mean by culture and cultural nothing unless we act to engage fit? Do we mean a culture where race doesn’t matter, where we more with our BAME peers. don’t see colour? If so, does it follow that we also don’t see the So, does it matter that I am challenges and limitations faced by people of colour? Black? Yes. It matters because As lawyers we are perhaps more cautious in our discussions, despite the challenges, I am here. as we are aware of how easily a word can be misconstrued. I am in that collective of lawyers; So, we steer away from these sometimes difficult and almost no longer is it an exclusive club. always awkward situations. We strive for equal opportunity: The Law Society of Scotland’s legal education and qualification are certainly levellers, but Profile of the Profession in 2018 social class, private education, family connections, access to gave real insight into the issues opportunities and legal work experience still heavily influence that BAME solicitors deal with, and the path to the profession. While there has been an increase in as more people of colour share their experiences, we see there is the number of BAME lawyers in Scotland and a more general still work to be done. The steps the Society is taking to address openness to diversity within the profession, we need to see the imbalance of representation need to be replicated across the that race does matter, and we all need to get comfortable profession, which must persevere in recognising and removing the talking about it. barriers to entry and progression that BAME solicitors face. This reticence to be open is not exclusive to white peers. I know We can then comfortably promote our diversity and inclusion, that in my effort not to stand out more than I already do, my accent knowing what they really mean. Our future lawyers will be better has been anglicised, my Zimbabwean expressions softened, and placed to recognise and identify role models, to connect with my natural Afro has not been seen since 1995! I have let clear the culture of our organisations, to see themselves and their injustices go unchecked as I have been afraid of impact on my communities represented in the profession. As we celebrate 100 career. I have had to laugh off the “my tan will never be as good as years of women in law I am optimistic that BAME lawyers too can yours” banter, as calling people out on it would be laughable. But take hope that in the years to come, the Scottish legal profession would we chuckle in the same way if a male counterpart compared will be able to celebrate its diversity and inclusion knowing that it his chest size to a woman’s? didn’t just learn about the Black Lives Matter movement: it acted. I don’t want to be seen as the “angry Black woman” (my kids may argue they often see me as one!), but I need it to be OK to be the angry Black woman. I need it to be OK that you don’t know how Thembe McInnes, solicitor. to pronounce/spell my name. I need it to be OK for prospective The views expressed are personal.

July 2020 \ 5 CORRESPONDENCE BOOK REVIEWS Comparative Do we go back? Concepts of Criminal Law 3rd edition KEILER AND ROEF (EDS) hat a very thought provoking editorial in INTERSENTIA the May Journal, and well done in getting ISBN: 978-1780686851; €89 (E-BOOK €89) the magazine out there online. Scots lawyers are natural W It made me wonder why would we want comparative lawyers. No other bench to return to the BC (Before COVID-19) era or bar in the common law world so and go back to printing out a magazine, then systematically refers to decisions of sending it physically to members. It all seems a bit passé. other courts in criminal matters. I have been working from home for the duration and There is value, however, in going have found it a very enlightening and positive experience. beyond ad hoc comparative law I have learned a lot from it and will be putting it into surveys. This work seeks to do practice as a practitioner and, as an employer, I will so, by examining how different certainly be discussing homeworking and flexible hours jurisdictions understand and apply omission, causation, justification with the staff when we return to work. key concepts of criminal law. It and excuses, inchoate offences, I now strongly believe in homeworking, but I also surveys many, but focuses on three and forms of participation. The last strongly believe that isolation is a terrible thing, fascinating comparisons: England two are the most rewarding for the so for most people there would have to be flexibility. & Wales (exemplifying the casuistic criminal lawyer. I think we have to cope with the current terrible and result-orientated common law If there is a weakness, it is situation, but we have to set out to learn from it. There tradition), Germany (criticised as a failure to recognise that focusing have to be positives. concept-driven and excessively on substantive criminal law gives Look at what reduced traffic of all sorts has meant for formalistic), and the Netherlands (the an incomplete picture. A chapter the environment. Do we really have to travel to meetings? authors take some native pride in its on sentencing policy and practice Yes, I am sure we do for some, but all? I think not. We have pragmatism and practicality). in future editions would cure that. been making extensive use of video calls of various types The book occasionally becomes a Scots lawyers will be comforted to deal with clients. It really works and has been generally little too theoretical, but comes into that our time-honoured approach welcomed especially by elderly and vulnerable clients. its own in the chapters exploring is the right one. It also made me wonder why Law Society of Scotland the fundamental concepts of actus Paul Harvey, advocate inspections could not be done remotely. If my cashier can reus and mens rea, commission and For a fuller review see bit.ly/2VFqyuh work from home, then surely a Society inspector, given remote access, could inspect my cashroom and client files. Could the Society’s monthly meetings be done by way of video? If Boris could run the country from isolation From The Little using videoconferencing and emails... [They are now – Ed] Crime to French And just so you don’t think I am attacking the Society, Crime Recipe well done to them for their online CPD. SIR RICHARD Book I appreciate that there will always be advantages to HENRIQUES JACKY DURAND hard copy in some instances, and to turning up to meetings HODDER & STOUGHTON HODDER & rather than videoconferencing, but should these not be the ISBN: 978- STOUGHTON: E-BOOK exceptions post-COVID? 1529333480; £25 £12.99 (HARD COPY PENDING) As we start the long process of coming out of the (E-BOOK £12.99) “This book is an utter delight... COVID-19 era, I put out a call to look for what we can learn “Written in a sparse but immensely laden with vignettes of life from it and how we move our businesses forward in terms readable fashion, this book offers a in cooking and recipes”. of efficiency and delivery of the profession’s essential ringside view on some of the most This month’s leisure contribution to our society. high profile and important cases... before the English courts.” selection is at bit.ly/2VFqyuh The book review editor is Archibald J Millar, MacRae Stephen & Co, Fraserburgh Read David J Dickson’s review at bit.ly/2VFqyuh David J Dickson

BLOG OF THE MONTH gla.ac.uk/schools/law/

The University of Glasgow’s School of Law she begins, but her grit and determination in project, 100 Voices for 100 Years, features the face of adversity show through at every some remarkable personal accounts from step. Now a successful litigator, is it all rosy? women who have overcome barriers to “In a word: no.” Bias, conscious or not, still pursue a legal career, not least Society rears its ugly head. But they’ll learn. Council member Naomi Pryde. “My step of courage is to share my story”, To find this blog, go to bit.ly/2VCRgn5

6 / July 2020 WORLD WIDE WEIRD Dead bored, live claim 1 Beware the office bore, they used to say – now boss’s house, over a four year period he described Stuck on you employers may need to be alert to “bore-out”. as a “descent into hell” which ended with his being bit.ly/2Zf7fkk A tribunal in Paris last month made redundant after taking sick leave. Egyptian honeymooners, stranded in found against perfume company He blamed anxiety, depression and Turkey as they returned from Mexico Interparfums in a claim by former even an epileptic fit on his being left in mid-March due to COVID-19, found manager Frédéric Desnard that with nothing to do. only one place they could travel to – his job was so dead beat he ended The company’s argument that he had the Maldives. But even its appeal up with depressive bore-out – the never complained about his situation did is fading by now. opposite of burnout. not prevent it being at the wrong end of Desnard alleged that after being a €40,000 award. 2 stripped of responsibilities It’s said to be a common problem You can’t he was given only in France, with people being always get... menial tasks like unwilling to take the risk of bbc.in/3dE9niQ letting in the changing jobs. But this is its The Rolling Stones plumber at his first judicial recognition. have issued a “cease and desist” letter to Donald Trump for PROFILE playing one of their hits at a rally without permission – but they would not be the first to have had such letters ignored. Sheila Webster 3 Head of Dispute Resolution at Davidson Chalmers Stewart, One who didn’t Sheila Webster has been a Society Council member since get away 2017 and has just been appointed to the board bit.ly/2BiqCsW A man has been arrested in Harrisburg, Louisiana on a e What made you pursue u What main issues do charge of criminal damage a career as a solicitor? you think the Society has after being caught on video Even in primary school, I liked to to address at the moment? swimming in an aquarium be the narrator in presentations Future regulation of our at a Bass Pro Shop (outdoor – some would say I still like profession will continue to be activities suppliers). talking. I always enjoyed debate, an issue and the Society has so law was a natural choice for much to contribute. COVID-19 university. It was that or medicine has exposed the difficulties for TECH OF THE MONTH and I never could stand the sight our courts of years of cuts and of blood. I hope this is an opportunity Paprika to rebalance. I am alarmed iOS, Android – $4.99 r What do you enjoy about the crisis in recruitment A colleague most about being a for those in criminal legal aid recommends Paprika Council member? – the issues can really only be as an app to help Meeting Council members from t What are you most addressed by improvements in you save recipes all types of practice, and from looking forward to as the legal aid system. Finally, I’m from anywhere on across Scotland and further a board member? impressed by the work to ensure the web, organise afield has been a highlight – I’ve Having been on Council for our profession is diverse, with them, make meal learned so much about concerns three years, being more involved equality at the centre of what we plans and create in different practice areas. I’ve in operational decisions will do – that will remain a big issue. grocery lists. also learned so much more be really interesting and paprikaapp.com about the immense work done challenging – never more so Go to bit.ly/2VFqyuh for the by the Society team – I’m in awe. than in the current climate. full interview

July 2020 \ 7 PRESIDENT Amanda Millar For members, the Society is now focusing on practical help with issues arising from COVID-19; with Government and others, we are constantly attempting to engage to help ensure the best decisions in the interests of civil society

… it’s July, it’s the summer holidays and found in the business support section of the website. I have seen colleagues with kids should be heading off first-hand the work of the Society and the adaptable, capable, civic somewhere or dealing with the challenges minded Scottish solicitor profession as they pulled together to of having them at home. Those without deliver support to members, clients, Government and stakeholders So would be covering for them and waiting for in these most challenging times. We continue to engage schools to return. But this is 2020, we are in collaboratively and are delighted to see many stakeholders deliver the middle of a global pandemic and for the flexible solutions to the urgent challenges – remote summary trials last three months we have all been juggling work/domestic life and legislation to allow for remote notarisations being but two of without regular schooling or office access, while concerned about these. This has only been achieved through sharing of knowledge, colleagues, technology, pastoral support and uncertainty over the flexibility, and open-minded collaboration in the interest of the future shape of business. public and civil society. The Society has become increasingly aware of the practical Collaboration has also continued in work not directly related to issues affecting many members during this time. A recent series the pandemic. Recent weeks have seen us deliver trauma-informed of round table events with members focused on these areas, giving training for practitioners in us insights into the challenges as well as allowing Society staff collaboration with Scottish and participants to offer practical help and advice. Government, Scottish Women’s This month, and likely beyond, we are meeting with employers Aid and Scottish Women’s and firms to give feedback on the challenges, while offering some Rights Centre. solutions where we can. We have also set up lunchtime drop-in Unfortunately, while the (virtual of course!) sessions for parents/carers to share experiences Society continues to engage and offer and receive support. The next session is planned for 30 proactively and regularly with July, with an employers’ session on 22 July. For more information or other organisations, the speed to book a place, contact [email protected]. As the of change and pressure to challenges around the pandemic, schooling and childcare develop, make decisions can sometimes we are adapting our support. Our free-to-join mentoring platform make communications from (www.lawscot.org.uk/members/career-growth/mentoring/) may those organisations a casualty. also be of interest. Sometimes it’s good to be able to confide in Society staff and I continue to someone outside your immediate colleagues. emphasise the importance of We are also aware of concerns from our newest members, engaging at an early stage and trainees. Some have been furloughed, with associated concerns with openness around changes about qualification dates and career options. Firms with trainees to the processes and procedures are also concerned about effective remote supervision etc. There on which our legal system is based. However, that is not always is a blog and FAQs on many of these issues from careers and happening. Solicitors are a vital part of our justice system and outreach colleagues on the website: bit.ly/LSSteefurl Scottish civic society, and as your representative body we will In terms of delivery of the sustainable and viable profession make that case at every opportunity. If you do become aware of a I referred to last month, we mustn’t forget future generations. change in process which is of concern as causing significant issues The inclusive and varied backgrounds of the Scottish solicitor for your clients, please get in touch either via your regional Council profession have been highlighted by the recently published member or directly to myself or other colleagues at the Society. #OneProfessionManyJourneys Role Models campaign (see bit.ly/ While I’m on the subject of clear and consistent communication, LSSjourneys), designed particularly to help young people see that I’d like to congratulate trainee solicitor Emily Campbell, this year’s a career in law could be for them. Due to lockdown this has initially winner of the Innovation Cup with her idea for a template to agree been promoted via social media, with positive feedback. We look how and when solicitors communicate with their clients. As the forward to engaging in person in schools, although we are open judges recognised, failures in communication are a common cause to virtual engagements too. We have become quite experienced of complaints and claims against the Master Policy, and Emily’s at these, having delivered the final of the Donald Dewar Debating idea to address that by setting clear expectations from the outset Tournament remotely. Congratulations again to Peebles High, this is very much to be welcomed. year’s winners. I look forward to more clear communication and effective collaboration in the interests of us all. Communication first Now that we are well into phase 2, and hopefully have reached phase 3 of moving out of lockdown, the Society has produced Amanda Millar is President of the Law Society of Scotland – more guidance for members in relation to opening up. This can be [email protected] Twitter: @amanda_millar

8 / July 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]

ADDLESHAW GODDARD, (Rural Land COULTERS, Edinburgh, Stonehaven, Edinburgh, Glasgow, Aberdeen & Business has appointed Wilson Inverurie and and internationally, has recruited team, Dundee); Browne as legal director in its Banchory, two new partners to join its to associate, conveyancing arm. He joins from has promoted Infrastructure, Projects & Energy Lucy Smith DRUMMOND MILLER. Mike Allan (IPE) practice: (Residential Fitzgerald, previously a partner MacKenzie Suzanne Moir, former partner Property team, at ADDLESHAW GODDARD, to associate in and head of Projects at DWF, who Dundee) and was recently appointed the Commercial will be based in Edinburgh, and Jacqueline executive chairman. Property department. Martin Stewart-Smith, formerly Tainsh (Private with BRACEWELL LLP, who will be Client team, DIGBY BROWN LLP, Glasgow, STRONACHS, Aberdeen based in London. Glasgow); and to Edinburgh and elsewhere, and Inverness, has promoted senior solicitor, intimate that with effect from Kirsten Anderson of the Private BLACKADDERS Azeem Arshad 31 March 2020 Sue Grant retired Client team, David Marshall in LLP, Dundee (Commercial from the partnership. Agriculture & Rural, and Michelle and elsewhere, Property team), Sharp in Family Law, all to senior has announced Glasgow. IT director Caroline Pigott, an IP solicitor and associate. In addition, Karen Leslie the following Kevin Moran, has been promoted chartered trade mark attorney, has will take on the new title of debt promotions: to to chief information officer. In joined HGF LTD, patent and trade recovery manager. legal director, addition, Fiona James, a trainee mark attorneys, Edinburgh, from John Dargie in the Aberdeen Rural Land & ANCIENT HUME LTD. WYLLIE & HENDERSON, Perth has (Private Client Business team, has qualified as a promoted Grant Peter McLennan, team, Aberdeen) solicitor and will continue working RAEBURN CHRISTIE CLARK & solicitor to associate with effect and Hazel Anderson in Rural Land & Business. WALLACE LLP, Aberdeen, Ellon, from 18 June 2020.

July 2020 \ 9 IN ASSOCIATION WITH DENOVO

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atten down the hatches? It’s safe to say that the past few months have been B tough on all of us. Here at Denovo we were worried about everything you would expect from a business perspective – our team’s safety and ongoing wellbeing, our clients’ ability to get the best out of our product while working in new environments, the thought of new business drying up, and the potential, gruelling re-forecasting process. These were all factors weighing heavily on the minds of the people leading our business. At the start we basically had two options – batten down the hatches and weather the storm, or use the time unceremoniously gifted to us to make our product, service and overall offering even better! We chose the latter. and integrate new platforms into our software to easily on the move. We found it. Now you can meet our customers’ needs. So that’s what we’ve take documents from anywhere – your folder, Getting to work… quickly been doing. the boot of your car or our case management Perhaps unsurprisingly, given the product and system, and Bundledocs will organise them into services we offer, lockdown has been busy at DocuSign a neat, numbered, indexed and sectioned booklet Denovo HQ (or home as we now call it). Law We recognised that the logistics of signing in ink in minutes. Instantly ready to save, share or print. firms up and down the country had to adapt, were fast becoming more and more impractical. No matter how big or small, you can change in and quickly. That was our cue to step up and With over 44% of the UK working from home, seconds. It can store all your court documents do the right thing – support, free online training many of whom may remain that way when in one place, allowing you to finally get rid of tools, deferred payment plans for new clients things get back to “normal”, and the limitations that paper case file and replace it with a tablet, and anything else firms needed to keep them on access to printers, scanners and post, we have wherever you go. It’s so simple to use, saves you operating, were put in place swiftly. fast-tracked our plans to integrate DocuSign into time and is massively efficient. Internally, we were lucky. Although we’ve our software. Firms can now complete contracts, always been pro-remote working, our team have approvals and agreements in minutes rather Superstars primarily been based in our Glasgow office at than days. In times like this, adversity always shows you Spiers Wharf. However, when the Government who the true “stars of the show” are and who is gave the order to lockdown, that’s exactly what Smart events maybe just there to collect a pay cheque. The we did. The move to full time remote working Smart events have been designed with way the Denovo team have responded to one was as seamless as it could be. All the tools we workflow-style automations in mind. Without of the most challenging times we will face in needed were at our disposal. Anything we didn’t the constraints of a path-style workflow, we our lifetime proves what we already thought – have was sourced. Communication channels can bundle up a variety of automations into they are all superstars! This period will be an for this type of working, although already in selectable options within CaseLoad, giving invaluable lesson for the future and will shape place, weren’t as familiar to some, so guidelines the automation you would typically find in a how we operate our business in the short, were shared and anyone who needed additional workflow but shrinkwrapped to be deployed as medium and long term. support got it. The business even helped people and when you see fit and not when a workflow I am lucky and can’t wait to see what pay for bikes to keep them active. For a business dictates. We can bundle up a whole variety of our team does next. of our size, you couldn’t ask for much more. actions/processes into smart events for you and tailor them to your needs. If you want to learn more about some of the Time to accelerate incredible work our team have been doing Beyond ensuring our team and clients were all Bundledocs recently and how to begin a partnership with us, OK, we wanted to do more. This was our time to We were told we needed to find the best way visit www.denovobi.com, email info@denovobi. accelerate our plans to develop new features for lawyers to access documents quickly and com or call us on 0141 331 5290.

10 / July 2020

CORONAVIRUS

Just back to work? As workplaces begin to open up again after COVID-19, all employers, including legal practices, are facing some key questions and challenges. Alison Weatherhead looks at some of the issues as we enter the “new normal”

here we are What should employers Since personal health information On 11 May 2020, the UK do if an employee calls in sick is special category data under GDPR, Government published with COVID-19 symptoms? employers must take care to preserve the W its COVID-19 Secure In the first instance, employers should individual’s privacy as much as possible Guidance, setting out speak to the employee, and ascertain and not name them directly. In reality, its measures for a safe who, and what areas, they had contact employees will likely be able to identify return to work. Guidance from the Scottish with in the workplace over the preceding the individual, and so employers should Government followed on 29 May, and we days. They should then speak to remind their staff that they must not now have tailored versions for use across those members of staff, and analyse speak to the media and, in particular, eight of Scotland’s key industries. the workspaces, as well as any CCTV should not name anyone who may have The basic tenet featuring in all of this they may have in place. Public Health the virus, or discuss the events publicly, guidance is that (at least for now) two Scotland’s guidance does not suggest for example on social media. metres of social distancing should be closing the workplace, but employers maintained wherever possible. As well should carry out rigorous cleaning. What about informing the as this, employers must carry out a risk Employers should err on the side local health authority? assessment and, in doing so, consult of caution and treat situations where The ICO has confirmed that data protection with their workers, and any relevant trade an employee describes COVID-19-like law will not prohibit employers from union, on the measures proposed. Whilst symptoms, but has not necessarily tested sharing this information with authorities it is not a requirement to publish the positive, in the same way as a positive for public health purposes, or with the risk assessment, unless there is a good test result. You should tell the individual police where necessary and appropriate. reason not to (for example, the presence to stay home and to self-isolate for In terms of whether they should disclose of commercially sensitive information), seven days. Ultimately, in both cases, in this way, the ICO has made clear that the UK Government expects employers the employee’s return to the workplace employers must also consider the risks to to do so for reasons of transparency. should be based on the time that has the wider public where they choose not to As clients continue to grapple with passed since the onset of their symptoms, share this information. what this guidance means for them, the extent to which there has been a below are some of the trickier questions reduction in those symptoms, and of Are employers allowed they and practitioners should have in course whether they have recovered to make temperature checks? mind moving forward. from the illness generally. A number of employers are reported to have implemented temperature checks in Do employers need What should employers the workplace. If a temperature reading to provide PPE? reveal if an employee is is taken, but is not recorded against an If an employer’s risk assessment diagnosed with COVID-19? individual employee or visitor, for example indicates that PPE is necessary, they Employers are not obliged to inform for compiling a report that includes the will need to provide this to staff and the rest of their staff that a colleague data as anonymous, then this may not ensure that it fits properly. The guidance has been diagnosed with the virus, but constitute personal data, in which case states, however, that it is unlikely you it would be good practice to do so. The the GDPR will not apply. will need to implement the wearing of Information Commissioner’s Office (ICO) Note however that the GDPR sets high PPE, face coverings or face masks, unless states that you should inform your standards for data to be anonymous. PPE was mandatory in your workplace workforce of any positive cases and, as In many cases, it will not be necessary prior to the pandemic. an employer, you have a duty to ensure to retain temperature readings once As such, for most employers, it is the health and safety of your employees. satisfied that the individual does not have unlikely that PPE will be a necessary a high temperature, and the information consideration. If, however, you find that can therefore be destroyed immediately, your employees feel more comfortable or not recorded at all. wearing face coverings or masks, you “It is clear that we may never see If a temperature reading is taken, should not necessarily discourage them an absolute return to what was and then recorded against an individual from doing so, and you may even find it employee’s file, or used to allow or deny helpful to implement this as a temporary, there before, particularly where access to a building, this will constitute reassuring measure. office working is concerned” personal data and the GDPR will apply.

12 / July 2020 As this is health data, you may only “If an employee does not want to of your workplace: what type of work process this information on certain do you do, what type of premises do specific grounds under both GDPR come into work because of you have and is working from home and the Data Protection Act 2018. genuine fears, employers should possible? You should also be clear about There are only two relevant grounds what you are trying to achieve and on which you could rely in this take these concerns seriously” consider whether personal information is situation. The first is that processing necessary for that purpose. is necessary for the performance of rights and obligations in connection ethnic origin), employers need to follow Can an employer monitor with employment. Given that neither the general compliance requirements how its employees move the Government nor the World Health of the GDPR. This means carrying around the workplace? Organisation recommends taking out a documented data protection The ICO has confirmed that monitoring employees’ temperatures, it will be impact assessment to ensure that the (for example, using thermal cameras or difficult (but not impossible, depending collection and processing of temperature other types of surveillance) is acceptable, on the circumstances) to argue this data complies with the core GDPR as long as it is necessary in the processing is necessary. requirements. These include: circumstances, proportionate, and in line That leaves consent, and there are • being transparent about how you will with employee expectations. On 18 March, well-documented difficulties with consent provide employees with information the Surveillance Camera Commissioner in the context of the employer/employee about the data processing; (SCC) and ICO updated the data protection relationship, due to the imbalance of • having a clearly defined business impact assessment for surveillance power. Employers adopting temperature purpose for the processing, and ensuring cameras and issued new guidance for checks should be aware that they may that the data will not be used for use in this context. Employees must find it difficult to show employees freely incompatible business purposes; always be informed before any such consented, if they will not be admitted • ensuring the data is adequate, monitoring takes place, and its use must to the workplace if they refuse. For relevant and the minimum necessary be proportionate, necessary and justified these reasons, temperature checks will to achieve the purpose (which could by a legal basis. generally only be appropriate in higher be problematic if the benefit of taking risk settings such as healthcare. temperatures is unclear); Recognising employee concerns In deciding whether to initiate a • accountability (including documented What if an employer brings in the programme of temperature checking (or, policies and processes); and necessary measures indicated by their for that matter, other COVID-19-related • enabling individuals to exercise their rights. risk assessment, and implements the data processing activities, especially In the context of testing employees correct processes, but some of their those that entail processing of sensitive for COVID-19, the ICO recommends employees still refuse to come to personal data such as health, race or considering the specific circumstances work? The reality is that this will

July 2020 \ 13 CORONAVIRUS

happen in some cases and employers need to be prepared. If an employee does not want to come into work because of genuine fears relating to COVID-19, employers should take these concerns seriously. ACAS guidance states that, where possible, you should allow the employee to work remotely or take time off work as holiday or unpaid leave. You should also remind employees of any support systems you have in place, such as an employee assistance programme. In particular, employers should consider mental health, and whether the employee might be suffering from anxiety or stress resulting from the pandemic. In some cases, this will exacerbate an existing condition, which may qualify as a disability under the Equality Act 2010. Where that may be the case, you must be mindful of the duty to make reasonable adjustments. On a basic level, as a first port of call, employers should have an open conversation with the employee to seek to understand, and listen to, their individual concerns. If they fall into the category of someone who is vulnerable or extremely vulnerable, or indeed if they live with someone who does, this dangerous part of his place of work”. in particular, has been propelled into the will also require special consideration. In What were, prior to the pandemic, spotlight in a way that might otherwise these cases, you should pay particular seldom-used provisions will no doubt be never have happened. Certainly, in attention to the risks involved, and the subject of much employment litigation Scotland, “working from home where consider adapting duties to facilitate over the coming months and indeed possible” is set to remain the default homeworking. If you have made use of years. With both subjective (reasonable position for the foreseeable future. the job retention scheme and furloughed belief) and objective (circumstances of What was arguably once seen as a employees in these categories prior to 10 danger) elements, it will be interesting “treat” became a lived reality for millions June, you should consider keeping them to see how the tribunals interpret these overnight. In perhaps the biggest social on furlough leave for the time being. provisions in light of the pandemic, experiment of all time, employers have If an employee unreasonably refuses particularly where the employer is seen flexibility boost productivity, with to attend work, however, and cannot work following both public health and some of the world’s largest companies from home, you may consider disciplinary governmental guidance in encouraging announcing that their employees need action. You should ensure you deal with and facilitating a return to work. never return to the office. Technology similar cases consistently, as with any Employers will wish to do all they has come into its own, allowing meetings, disciplinary matter, whilst also taking can to avoid escalations of this kind, webinars and even coffee catch-ups into account the particular individual’s particularly as these provisions are but to take place straight from the nation’s circumstances and reasons for refusing one of a number of potential avenues livingrooms, and there are already to attend. of protection available to employees reports that almost half of workers want in this context. Employers can do this to continue with flexible working after What special protections do by engaging with their employees COVID-19 restrictions are lifted. The employees have in this context? throughout the process, listening to them question of when schools go back on Under ss 44(1)(d) and 100(1)(d) of the and making them feel listened to, and a full time basis will also have a huge Employment Rights Act 1996, employees considering alternative arrangements knock-on effect on the nation’s working have the right not to be dismissed or where possible. patterns, in the office working sphere as subjected to any detriment on the ground well as beyond. that “in circumstances of danger which The new normal While employers can implement the employee reasonably believed to Notwithstanding the efforts being made Alison various interim changes to help navigate be serious and imminent and which he to facilitate the return to work, it is clear Weatherhead, a safe and happy return to work, could not reasonably have been expected that we may never see an absolute return partner, Dentons ultimately they will need to look at what UK & Middle to avert, he left (or proposed to leave) to what was there before, particularly East LLP permanent changes they must make to or (while the danger persisted) refused where office working is concerned. bring in the new normal many employees to return to his place of work or any Flexible working, and working from home will be expecting.

14 / July 2020

SOLICITOR ADVOCATES

The silk road: a modern journey Few civil solicitor advocates have as yet taken silk. Why is that? Tony Jones QC recounts his own journey to becoming senior counsel, and assesses how the changing litigation scene may affect others on the path

ust over two decades ago I wrote an whereby any ordinary cause sheriff court action called before article (Journal, April 2000, 22) that I a sheriff to “table”, a pointless hearing at which nothing intended to afford some guidance to happened other than that the defended case was noted as those considering qualifying as a solicitor having “tabled”. Successive changes in procedure have seen J advocate, as I had just been introduced less and less day-to-day oral civil advocacy happening. The as one myself. It is fair to say that things packed courts and the lengthy motion rolls of old in the Outer have changed a little over the last 20 House had been a source of experience for many members of years, and I thought it might be time to offer aspiring solicitor the junior bar as well as a valuable source of income. Today, advocates the benefit of my experience gained during my many litigators find it difficult to get time on their feet in a civil journey to taking silk, as well as looking ahead to the changes court at all. we might expect to be coming our way. It surprises some that the criteria for being awarded the Getting the breaks rank and dignity of senior counsel are the same for solicitor Having gained significant experience in the sheriff courts, advocates and advocates. One is assessed on one’s ability to qualified as a solicitor advocate and run my first Court of present highly complex and challenging cases in the supreme Session proof, I was fortunate to move to a large insurance courts of Scotland. The full guidance on the criteria can be firm where my path to seeking silk became clear. Also, the found on www.scotland-judiciary.org.uk . introduction of personal injury procedure in the Court of In 2000 the Scottish Government published a research Session led to an upswing in interlocutory appearance work paper which recorded that in 1996 there were 87 while everyone began to get used to how the rules should solicitor advocates. Today the Law Society of Scotland’s work. At the same time, I was able to expand my commercial website indicates that there are now 201 civil and 152 criminal practice as well as acting in many professional negligence solicitor advocates. There remain approximately 460 practising and construction disputes. members of the Faculty of Advocates, of whom approximately It is fair to say that the impact of Faculty’s prohibition on one fifth are Queen’s Counsel. One might conclude that there “mixed doubles” had an unexpectedly positive impact on my has been significant progress in expanding consumer choice route to taking silk. The rule prohibited members of Faculty as to who they instruct to conduct advocacy. Yet only six from appearing with solicitor advocates. The term “mixed solicitors have taken silk as civil solicitor advocates. doubles” came about because the then Dean introduced the Why is that? rule during the Wimbledon fortnight. The fact that it was not possible for clients to instruct a senior with whom I could Out of court appear resulted in many clients choosing to continue instructing One of the reasons probably lies in practical difficulties me alone. This meant that I was privileged to conduct some surrounding the practice of civil advocacy as a solicitor. interesting and complicated cases, usually against Historically, it has been difficult for solicitors carrying junior and senior counsel, myself. Had clients been their solicitor work to find the time to appear in proofs and afforded the opportunity to instruct “mixed doubles”, “The future of procedure rolls. This is one of the reasons that Brodies LLP I am not sure that I would have been favoured with founded an in-house set of dedicated solicitor advocates the opportunity of conducting so many cases on my Scottish dispute called Advocacy by Brodies. We want to retain talent by own. However, I was very pleased when the rule resolution must facilitating those who want to develop a career focused on was revoked and I had the opportunity to work with advocacy to do that at the firm. a number of silks. lie in adopting Another reason why there are fewer civil silks on If the solicitor branch of the profession wishes more flexible the solicitor side of the profession may be the reduced to retain its advocacy talent, then it must offer opportunities to appear in court. It is fair to say that when sufficient opportunities to conduct advocacy. Which ways of working I started conducting advocacy in the 1990s there was is why, at Brodies, we aim to afford those of our and maximising significantly more appearance work than there is now. Indeed, solicitors who want to qualify as solicitor advocates in the early 1990s almost every aspect of a court action the opportunity to be trained and appropriately the benefits of required to take place before judge. An example was “tabling”, experienced to do so. That means good quality technology”

16 / July 2020 training and time on their feet. Similarly, our dedicated set of and colleagues in a more flexible and integrated way, using solicitor advocates is there to provide a choice to our clients, information technology. as well as a secure platform from which solicitor advocates It seems to me that the future of Scottish dispute resolution can build and conduct their advocacy careers. must lie in adopting more flexible ways of working and maximising the benefits of technology, thereby reducing costs Dispute resolution today and affording consumers greater access to justice. In the last few decades, we have seen new tribunals, The focus for our profession ought to be how we can use adjudication, arbitration and mediations, and this has led to the new skills and techniques we have learned during this a significant decline in the amount of traditional civil litigation pandemic to better deliver the resolutions that our clients being conducted in Scotland as well as a rise in solicitors want. In that endeavour we must not be dogmatic in defending specialising in particular types of dispute resolution. I see the the historic way, or ways, in which our profession has chosen future of advocacy being the same – solicitor advocates will to try and resolve disputes. Anyone who has teenagers will become more specialist, and to do that they will need to be know that they socialise and communicate differently. Often, in larger firms with specialist or niche practices. they prefer meeting online to going out to meet friends. The It is also fair to say that COVID-19 has changed and will lawyers of the future will see nothing strange in resolving continue to change dispute resolution. However, we should disputes online; indeed they will probably look on tales of look at that as an opportunity because as lawyers we have a “motion rolls” in the way we did about our grandparents rare opportunity to determine the direction of travel. speaking about gas lighting and their first crystal radio set. The pandemic has lent much force to Professor Susskind’s If clients, particularly in civil disputes, want and need assertion in his most recent book, Online Courts and the Future online dispute resolution, whether such resolution involves of Justice, that the courts should be a service and not a place. oral online hearings or not, that is something that our system As the author observes, many people cannot afford to use our requires to deliver. The fact that we have considerable excellent but complex courts. numbers of our profession, including me, who have devoted If we embrace the opportunities for change, we ought to their careers to resolving disputes in a particular way is not be able to afford greater access to justice and reduce the a reason to refrain from delivering that. Those of us who Tony Jones QC is costs associated with resolving disputes. grew up under these old systems may fear change but, in the a partner and civil midst of COVID-19 and the challenges that we all face as a solicitor advocate Clients’ changing demands result, I find myself remembering the words of Clint Eastwood with Brodies LLP But what does the future hold for those with higher rights as the drill instructor in Heartbreak Ridge – “improvise, adapt of audience? We too ought to embrace the opportunities. and overcome”. I suggest that, as ever, Scots lawyers will, and Advocacy by Brodies aims to be able to operate with clients we shall!

July 2020 \ 17 REGULATION

New angles on the review Recent reports and events bring fresh perspectives on Esther Roberton’s proposal for a new professional regulator but, in Tom Marshall’s view, fail to add weight to her case for reform

sther Roberton’s For one thing, the SLCC is effectively came from the complaints levy. The cost of review of regulation not accountable, in the true sense of being the SLCC is therefore almost entirely borne of the legal profession, responsible. I note that on 5 August 2014, by the profession as a whole. Fit for the Future, has Scottish Government representatives told If there are issues with accountability, E already generated the Scottish Parliament Justice Committee there are also questions of proportionality. many column inches that the SLCC “is funded not by the A relevant comparison can be made between in the Journal, but Scottish Government but by a levy on the SLCC system and the complaints system I hope I can be permitted a few more. the profession, giving a certain amount of which preceded it. The old system is neatly Since the replies from Stephen Gibb, accountability to the profession”. Well, not summarised in the SPICe briefing (06/33) Philip Rodney and Donald Reid (March really, when the profession has no control to the Scottish Parliament on the 2006 bill. 2020, 12) to Lorne Crerar’s article (January over the amount of the levy. The SLCC isn’t Complaints against solicitors were handled 2020, 12), there have been three significant accountable to the Scottish Government by Law Society of Scotland committees developments, leaving aside the COVID-19 or Parliament either. Budgets, accounts made up of equal numbers of solicitors and outbreak. The Competition & Markets and reports may have to be laid before lay persons. As with the present system Authority delivered its latest verdict, Legal Parliament, but no approval is required or for service complaints, clients and solicitors Services in Scotland, in March; the Scottish disapproval possible. Audit is carried out were encouraged to come to agreement Legal Complaints Commission issued by Deloittes on behalf of Audit Scotland, to resolve issues. If this was not possible its budget for 2020-21 in April; and but this does not involve any qualitative the committees could uphold or reject in June, Professor Mayson’s final report assessment of its operations. complaints and impose a range of remedies, on Reforming Legal Services (in England When the financial memorandum was very similar to the present SLCC remedies, & Wales) was published. prepared for the 2006 bill that became the when a complaint was upheld. Conduct Legal Profession and Legal Aid (Scotland) complaints, then as now, were handled The SLCC as regulator Act 2007, it was estimated that the annual by the Society and prosecuted before the The SLCC budget, laid before the Scottish cost of the SLCC would be £2.4 million. The Scottish Solicitors’ Discipline Tribunal in Parliament exactly as per its draft of proposed budget for 2020-21 may be no appropriate cases. January 2020, took absolutely no notice, more than that in real terms, but this was It can reasonably be asked whether the bar lip service, of COVID-19 and the estimated to be sufficient to handle 4,000 construction of the SLCC edifice, including economic crisis facing the legal profession complaints a year. That number has never the rigid and convoluted processes contained along with every other sector. If ever there been approached. in the 2007 Act, was a proportionate could be a shining example of what the In addition, 50% of response to any concerns which may Roberton reforms would mean, this was the funding was to come “The only have existed about the independence of it. The regulator decides what the cost of from the complaints the Society’s complaints structure. There regulation will be, and the regulated just levy on a “polluter pays” people who can was no evidence of systemic failure of that have to keep writing the cheques. If they principle, or at least that adequately structure because of its administration don’t like it, tough. those against whom by the profession. On the other hand, the Actually, I doubt very much that complaints were being define what evidence to Esther Roberton’s inquiry on the Esther Roberton would agree with that made were paying for the skills are functioning of the SLCC complaints structure proposition. Her proposals were based on dispute resolution service showed considerable dissatisfaction from the Better Regulation principles, which, the SLCC would provide. required of a many quarters. let’s remind ourselves, are that regulation In its 2018-19 accounts profession are Simply making a regulatory organisation should be proportionate, consistent, we can see that of the independent of the profession it has to accountable, transparent, and targeted total income of £3.5 professionals regulate is obviously not a panacea for only where needed. million, a mere £116,000 themselves” any actual problems which may be seen,

18 / July 2020 or thought to exist, when the organisation prerequisite to practice, a qualification response to advances or changes in their was created. and indication of competence. This served fields of expertise and, so far as conduct several purposes. First, the professional is concerned, to changes in society’s Essence of professional regulation bodies laid down the levels of skill and expectations of behaviour. It is also in the Turning, therefore, to the case for an knowledge which any aspiring member had public’s and clients’ interests that there are independent regulator, it is appropriate to achieve. Secondly, any client would know recognisable professions with identifiable to consider whether the proposal itself that a member had satisfied the profession members who have the competence satisfies the Better Regulation principles. of his/her skills and knowledge. Thirdly, and skill to provide whichever service is Is independence a factor which overrides the professional bodies had no interest in required. However, there is an interest to or should override those principles? In lowering standards, as to do so would allow have external involvement to provide a other words, is it more important that competition from persons with lesser skills wider perspective on the organisation of a regulator should be independent than the existing membership. Professional the profession. of those it regulates than that it is bodies also have no interest in permitting One thing is clear: the only people who genuinely accountable? Are any questions people to remain members if they do not can adequately define what competencies whether or not proposed changes are uphold and maintain the standards and and skills are required of a professional proportionate, or targeted to meet any conduct expected of them. As Donald Reid are professionals themselves. An electrical problems seen to exist, subordinate to the pointed out, these concepts long predated engineer cannot define what a doctor needs principle of independence? the creation of the Law Society of Scotland. to know, nor can an architect prescribe what The legal profession, as with others What about the interests of the public a lawyer should be able to do. On the other such as the medical, dental, veterinary, in general, or of the individual client? It hand, professions cannot be insular. Beyond accountancy and architect, has developed is in the public interest that there exists the pure issues of skill and knowledge, over centuries as skills and specialist a body of expertise available to provide professions must be able to adapt and knowledge increased and with the services necessary for the functioning of learn. They must also be open and organisation of education to support it. society. That interest extends to seeing transparent. This is where lay input is vital. Of importance to all professions was that standards of competence, skill and A system of regulation which includes both the formation of professional bodies, conduct are maintained. This includes professionals and lay people ought to membership of which became, if not a the need for professionals to develop in be the answer.

July 2020 \ 19 REGULATION

Of course, for the solicitor profession that is precisely what exists at the present time. The current system, with the Regulatory Committee of the Law Society of Scotland having a 50/50 lay/solicitor membership, a lay chair and the statutory responsibility to carry out the Society’s regulatory functions, satisfies the Better Regulation principles. The Legal Services (Scotland) Act 2010, which provided for this system, was passed specifically with these principles in view. The creation of an entirely new and independent regulator was not considered proportionate. Lay representation on the Regulatory Committee and on the Society’s Council provided transparency and targeted reform to the pre-existing structure. The present structure therefore provides accountability both to the public and to the profession. In addition, it has been the consistent policy of the Scottish Government to avoid creating new public bodies wherever possible.

Consumer interests One would be forgiven for thinking that Esther Roberton’s recommendation that, nonetheless, the Scottish Government should go ahead and create a new independent regulator for the legal professions, resulted from some obvious failure or defect of the system set up so recently and with the same principles in England & Wales (where regulation was of the CMA’s position in the Roberton behind it. However, no examples are cited already independent of the professions), report, and what is said in its 2020 report, demonstrating, for example, that ill-qualified that regulators should be independent both suggest a preference on its part for a people are being admitted to the profession, from the markets they regulate. There are a domination of the market by a far smaller or that there is a systematic lack of skill number of points to be made on this, which number of providers able to cut prices by being exercised in any facet of practice, are equally relevant to the CMA’s most using economies of scale. At the same time, or a decline in the standards of conduct. recent intervention, its report into legal confusingly, the 2020 report also criticises On the contrary, Roberton went out of her services in Scotland in March 2020. different providers for different levels of way to state that her recommendation To begin with, the role of the CMA is pricing for similar services – which actually “should not be taken to imply any criticism “to promote competition for the benefit of suggests price competition already exists in of the existing bodies currently involved consumers” (Enterprise and Regulatory a wider market place. in regulation”. All that could be said was Reform Act 2013, s 25(3)). “Consumer” is The Scottish Parliament has just passed that “professional bodies providing both defined as a person “who does not receive the Consumer Scotland Act 2020. There regulatory and representative functions can or seek to receive… goods or services in has been a void in Scottish public life since lead to the perception that the two roles the course of a business carried on by the UK Government abolished Consumer are in conflict. It is this perception that risks him”. Accordingly, the interests of business Focus (formerly the Scottish Consumer compromising public trust”. clients, the public sector, the wider public Council) in 2014. If there is a need for a Nothing has occurred which gives any interest or the interests of the profession greater reflection of consumer interests cause for loss of public trust. No conflict itself are at best secondary considerations. in the regulation of the legal profession, has occurred between the Regulatory The ambit of the CMA’s 2020 report is, not one possibility might be to provide for Committee and the Society’s Council. On the surprisingly, entirely concerned with legal representation of the new Consumer other hand, public trust in the complaints services provided to consumers. Scotland on the Society’s Regulatory structure under the SLCC has been The work of solicitors in practice Committee. This would seem a far more compromised even though it is independent extends far beyond such provision. Is it proportionate step. of the profession. appropriate to impose a new regulatory Perhaps the most persuasive factor framework simply to satisfy the interests The changing Scottish market for Roberton was the position of the of consumers? An independent framework In his Journal article Lorne Crerar argued Competition & Markets Authority, based may in any event still fail to meet those forcefully in favour of the Roberton on conclusions it reached from its 2016 interests, as the CMA’s 2016 report for proposals. He cited increasing choice of examination of the legal services market England & Wales argues. The discussion English law in transactions, the invasion of

20 / July 2020 the Scottish legal market place by English- partners were happy to was unwilling to recommend the headquartered firms, and the continuing accept, or felt unable to “There is no expansion of the reserved areas of work, restrictions on business models available refuse. Client pressure case for a brand or, at least initially, the supervision of claims to Scottish solicitors. He also agreed with in some instances will management companies by her regulator. Roberton’s conclusion that all legal services have tipped the scales. new regulator. Section 3 of the 2010 Act sets out a broader providers in Scotland should be regulated Whatever business The current definition of legal services, but in the by a single regulator. With respect, these do model Scottish firms had absence of the ABS structures coming into not appear to be convincing reasons for the been operating under system satisfies effect, does not proscribe the carrying out Roberton proposals. would have made no the Better of those services by unregulated persons. The erosion of Scots law has been a significant difference. The answer, according to Professor concern for decades, if not centuries. I’m The owners of those Regulation Mayson’s review, is to focus on the sure Professors Matheson and Wilkinson businesses, solicitors or principles” regulation of legal services and not of and others discussed this in the Scots law otherwise, would have lawyers. He recommends sweeping away lectures I attended at Dundee University been under exactly the all the regulatory structures created in the mid-1970s. It is arguable that Scots same pressures. in England & Wales after the Clementi law has influenced English law to just As to the restriction reforms and the creation of a single as much an extent, and will continue to on business models, the Legal Services body to regulate all legal services in as long as two Scottish Justices remain (Scotland) Act 2010 has now been on the public interest. “[We know that] in the Supreme Court. Lord Reid in the the statute book for 10 years. It is not the risks, vulnerabilities, threats and insidious post-war period and, more recently, Lords Law Society of Scotland’s fault that the impacts arising from technology and Hope, Rodger, Reed and Hodge have been Scottish Government has failed to bring its alternative or unregulated providers are outstanding, not forgetting Lord Mackay of own legislation into effect. The Roberton already ‘out there’ in the legal services Clashfern’s spell as Lord Chancellor. review came about, not because of any sector,” he states at para 4.3.5. “Allowing Just because their regulatory system fundamental problem in principle with them to increase and spread, unchecked, ensures that a country’s courts and lawyers the present regulatory structure, or with will in the end improve neither access are regarded as upright and competent the ABS structure which the 2010 Act set to legal services nor public confidence does not necessarily make the laws of that out, but because the Society asked the in the provision and regulation [of] country an obvious or automatic choice Scottish Government to deal with other those services.” for business to adopt. Ownership and features of the Solicitors (Scotland) Act This statement could be applied as headquartering of clients is much more 1980 which were out of date, and because much to Scotland as to England & Wales, likely to play a part in the selection of the complaints system under the 2007 but his answer would mean the creation of governing law or the prorogation of a court Act was too prescriptive and cumbersome. a far bigger drawing board than anything in any contract. English law has benefitted It seems highly improbable that ABS will envisaged by the Roberton review or by from London’s history as the centre for arrive in the Scottish legal market place the Scottish Government in setting it up. business and finance since the days of more quickly if we must await the design, The carrying out of legal services by the Empire. Scotland has suffered from incorporation and formation of an entirely unregulated persons appears to me a far the demutualisation of its financial sector, new regulator. greater hazard to the public or consumer de-industrialisation, and the sale abroad interest than any potential (as opposed to of much of its remaining industry, none of Beyond Clementi actual) conflict of interest in the Society which has to do with the regulation of the Finally, there is the question of who the as between its functions as regulator and legal profession. providers of legal services might be, and representative of the solicitor profession. I would also argue that the increasing who should regulate them. On the face of Scots law is at far greater risk of erosion presence of English or international law firms it, having a single regulator independent of the more legal services are provided by in the Scottish market has little or nothing to any providers looks good, but what would less qualified, and lightly regulated persons. do with the regulatory structure. In the 1990s this actually mean in practice? Leaving The standing of the solicitor profession in in particular, a significant number of Scottish aside the Faculty of Advocates and the Scotland is also more likely to diminish the law firms took the plunge and opened offices SLCC, there is to all intents and purposes a more its members are relegated to the back in London, with varying degrees of success, single regulator in Scotland at the present seat in the ownership and management of but it was not one-way traffic. North Sea time – the Law Society of Scotland. What legal service providers. oil had encouraged a number of firms to in effect is not regulated is any legal work Accordingly, the Scottish Government venture north of the border. Robin Thompson not reserved under s 32 of the 1980 Act. should reject Roberton’s principal & Partners, the trade union law firm, came in “Lawyer” is also not a regulated term. This recommendation. There is no case for a 1979. Some of the other firms listed by Crerar was graphically illustrated just before brand new regulator. The current system have been around the Scottish market since the Roberton review when a prominent of regulation of the solicitor profession well before the Clementi reforms. Glasgow solicitor, having been struck off has independence built in and satisfies the Tom Marshall Ultimately what has led to the more the roll, promptly reopened for business is a member Better Regulation principles. The examples recent expansion of English and other as a “lawyer”. Even a risk-based approach of the Council of the SLCC and the English regulatory law firms into Scotland was their size to regulation might spot that this may not of the Law system inspire no confidence that a new and scale in comparison with even the be in the public interest. Society regulator could appropriately balance the of Scotland, largest Scottish firms. The “invaders” Roberton accepted that the use of interests of justice, the public interest, representing have been able to make offers to equity “lawyer” by an unregulated person was solicitor business, consumers and the profession partners of Scottish firms which those liable to be confusing to consumers, but advocates and be genuinely accountable.

July 2020 \ 21 FAMILY DISPUTES

Arbitration: a family lawyer’s tale Ruth Croman describes her first experience of arbitration to resolve a family law dispute, and how it overcame difficulties facing a sheriff court action

amily lawyers have, made during that hearing, we exchanged along with many other affidavits and each side prepared a brief court users, found further affidavit addressing points raised themselves unable by the other. Both sides then lodged a note F to progress cases of authorities, and their submissions, in substantively for their much the same way as often now happens clients over the at court. The arbitrator issued her written COVID-19 lockdown period, with sheriff decision four weeks later, in line with the courts and the Court of Session Outer agreed timetable. House broadly closed to all but emergency After the decision was issued, we had business. Proofs are still not taking place a further conference call to consider the and, at time of writing, no guidance is issue of expenses, and the timescale for available as to when these might be implementation of the decision. Once assigned again. payment had been made, we recalled the Even once the courts reopen more sist in the sheriff court action and decree of widely, physical distancing requirements divorce was subsequently granted, using will inevitably have an impact on the the affidavits that had been prepared in the number of cases that can be dealt with at context of the arbitration, to save further any time and, despite the best endeavours We were trundling along in a sheriff court expense for the client. of SCTS, our already stretched system will divorce case where financial provision was have to deal with additional pressures, as the main issue and my client had relocated Effective forum well as trying to clear the bottleneck of to New Zealand. The other agent and I were In an arbitration there is a cost for our cases that have built up. discussing the logistical difficulties that clients in paying the arbitrator, but there We all have cases where it becomes might be involved in her giving evidence, is similarly a cost in litigating through the clear that negotiation is going nowhere and including of course the substantial time courts – meeting warrant or signet dues, a a third party decision (usually from a court) difference, and he mooted the prospect fee for fixing a proof in the sheriff court and will be required to break the deadlock. In of arbitration. After some research and for court time in the Court of Session; and of our present situation, that leaves a very discussion with the client about that course shorthand writer fees in the sheriff large question mark as to how to progress process and likely timescales, we agreed court. I suggest that the cost of arbitration a case for a client where the opportunity to to sist the sheriff court action and refer the fees is comparable to litigating in the sheriff have a sheriff or judge hear evidence and issues of what orders should be made for court, and lower than in the Outer House. make a decision is not likely to arise any financial provision to arbitration. In our case the process was concluded time soon. We identified and agreed on an arbitrator much more quickly than it would have So what does this mean for those (a QC with very considerable family law been in court. The parties were assured of involved in such disputes? Unless experience). We discussed the process, absolute confidentiality, and because the designated high priority by the court, it agreed the questions we wished to refer arbitrator was a respected family lawyer, seems likely that cases will be dealt with in and the broad detail of the process. Both both appeared to be readily willing to chronological order, with the oldest cases parties then signed a formal agreement accept her decision. first. Where lives are on hold pending such to arbitrate. This was a case where issues For all these reasons the use of determinations, delays can seem intolerable. of credibility and reliability were not arbitration in this case proved to be going to be determinative and, given the highly effective. It represents a clearly Testing arbitration’s potential logistical challenges of my client’s location, viable alternative to litigation, particularly But there is an alternative in the form of we agreed that the process would be by in these troubled times. arbitration. Although it has been slow to affidavit only, without oral evidence. take off, arbitration has been available in The arbitrator set out a timetable for Further information about arbitration family law cases for almost 10 years now, submission of documents and affidavits in family law cases can be found at Ruth Croman both for cases involving children and those and assigned a hearing, undertaken is a partner www.flagsarb.com, and more generally where finance is in dispute. by conference call, to discuss further with Macnabs, in commercial disputes at I was fortunate to act in one last year. procedure. On the basis of decisions Perth www.scottisharbitrationcentre.org

22 / July 2020

FAMILY BUSINESS

Could you help family businesses? Family business clients are a growing market, but need carefully tailored, multi-disciplinary solutions. Ken McCracken poses some testing questions for would-be advisers

amilies have been in business since the beginning of history, but only recently have family F businesses been recognised as a distinct type of client. The good news for advisers is that these clients are increasingly seeking creative advice. The interesting challenge is how to take advantage of this opportunity. In other good news for advisers, there is plenty of new knowledge out there. For example, the Family Firm Institute (FFI: www. ffi.org/education/) provides certificated learning programmes, as does the Society of Trust & Estate Practitioners (STEP), through their Advanced Certificates in Advising the Family Business and Family Business Governance. Family business owners and leaders are avid consumers of this new knowledge. The Family Business Network (www.fbn-i.org/) has member associations in 65 countries and a membership of some 4,000 business families encompassing 16,000 individuals. opportunity to draft an employment contract, piles of literature on the importance that family Since each business family knows many combined with some tax advice; job done and businesses attribute to socio-emotional wealth, others, this knowledge spreads quickly through move on, hopefully to the next family business another characteristic that makes them unlike peer learning, popular among families who who would like to purchase the same outcome. any other type of business. want to emulate those who have achieved Undoubtedly, family businesses will always Changing specialism, some families want to multigenerational success. For them, the world need specialist advice because the world is a use an ownership trust but want to ensure that offers more hope than is expressed in mean- complex place, but the challenge they are now it will be a vehicle for entrepreneurial wealth spirited clichés, which claim that every family offering advisers is, can you go beyond this creation rather than wealth preservation. They business is doomed to fail over three generations. conventional approach? also want beneficiaries to be actively involved in Business families would like to hear from you governing their business rather than becoming Crucial overlap if you can create a policy on employing family passive and disenfranchised owners. What help The new approach to family businesses accepts members that governs these sensitive decisions can you offer? that, above all else, every family in business has in a way that balances the interests of the family Anyone who would like to be the trusted to cope with various challenges caused by the and their business. adviser to a family business would have a overlap between family and business life. This is They would also like to know if you can desire to help with this decision making, the reality that makes family businesses different advise on an incentive scheme for non-family and would never take the commercial risk of from other types. management that is aligned to achieving all the waiting on the sidelines until the family need to For example, employing a family member will returns on investment that the family value. choose one of the many specialists who could often stir up discussions about talent, fairness, These usually include non-financial returns, like implement their decisions. reward and nepotism, and possibly cause preserving a legacy of attachment to a particular arguments between relatives competing for the type of business activity or a geographical Dealing with the “soft” stuff? same job. Would you like to help this client? location. If this opportunity sounds interesting, Advisers should, of course, expect to be asked This could easily be approached as an a good place to start would be to review the to demonstrate their experience. It is easy for

24 / July 2020 most advisers to say that they already act for adviser, specialists will be of limited value if they family businesses, for the simple reason that it work only in their specialist silos. is difficult to avoid these clients. According to the Serving the family business client is inevitably Case study: Institute for Family Business there are 4.8 million a multi-disciplinary activity. Of course, many could you help? family businesses in the UK, of which more than specialists already work in a team of sorts. 18,000 are medium and large businesses. They They share information and intermingle advice, Tom Wilson is managing director and owner generate over a quarter of UK GDP and employ but still mostly this is transaction based and each of a second-generation family business 13.4 million people, approximately 50% of private specialist contributes to the team by focusing on started by his late father. Tom’s brother sector employment. their respective area. never entered the business and his father’s However, nowadays family business clients will decision to leave all the shares to Tom expect more from advisers than a track record of Team approach resulted in a rift between the brothers. other clients and a particular specialism. Is this Imagine, however, if it was like this: Tom and Mary have three children. The where soft skills become important? • The advisory team have a clear, shared youngest, David, joined the business straight “Soft skills” describes an indistinct cluster understanding of the family’s overall vision from school, while his siblings Eleanor and of personal characteristics and experiences for their business. This includes the financial John pursued careers elsewhere, and have that enable advisers to interact more effectively return they want and the non-financial returns their own families. with clients and cope with the relationship side that they value. Tom would like to retire, but feels of things. They are contrasted with the “hard • The team shares information to reduce costs financially vulnerable because over skills”: the adviser’s hard-won knowledge and to the client if they had to repeat the same things the years he has reinvested a lot in the expertise. But in the following example, what many times over. business. Tom and Mary are also concerned really deserves to be described as the hard • The team can provide concise, consolidated about their children. and the soft stuff? reporting on the business and the family’s A friend suggested that “obviously” all A family fear that the absence of a workable private affairs, if requested. the shares should go to David because succession plan for ownership and leadership of • Fee structures never clash, and the team he works in the business. However, Tom their business will lead to loss of money, status agree to share some revenues depending on remembers how this approach caused a and reputation. They also fear that starting to overall performance rather each adviser billing split with his brother and does not want the discuss a plan will stir up conflict, and make in isolation. same thing to happen. Tom and Mary would people feel vulnerable, anxious, and frustrated, • It is clear how team members are appointed, prefer to divide the shares equally among partly through the effect the business is having appraised, and if necessary, removed. their children. In any case, maybe Eleanor on family relationships and the way some family • Team leadership is shared, and transfers and John will one day join the business, an issues are played out in the business. depending on the matters being dealt with outcome that Tom and Mary subtly promote This family business needs a lot of help. It at any time. at family get-togethers. is mindboggling, however, to think that dealing • No one tries to become the gatekeeper Tom’s doctor recently recommended that with fear, loss, conflict, vulnerability, anxiety and because the team knows that ultimately Tom should take things a bit easier. Tom frustration could ever be described as soft stuff. the family business client needs all of them decided not to share this advice with Mary Many family businesses would suggest that for to work together. because it would worry her. Unknown to them the soft stuff is the hard stuff. They would Is this type of multi-disciplinary team Tom, however, John recently told Mary that it like help from advisers who can demonstrate an desirable? The client-centric way to frame this seems likely that he and his wife will divorce. understanding of these needs and who can place question is, what type of team does a family An incomplete list of the challenges them, rather than the adviser’s specialism, at the business need? If the answer is the type just facing the Wilson family would include: centre of the offer. described, the question becomes, are advisers • How can Tom and Mary harvest money able to do what is necessary to from the business to fund the next phase of Not for the generalist deliver for these clients? their lives and look after their health? The question still is, would you like The size of the family business • What does retirement mean to Tom, and to help family businesses? market emphasises the scale of does the rest of the family agree with his The idea of being the trusted opportunity for firms who want to opinion? Does he want to walk away from adviser to all members of a family commit to this sector. This means the business or retain some involvement? and their business sometimes investing in training in the new • How will David feel? Does he want to generates nostalgic memories knowledge and in developing assume control, or would he like dad to of the general practitioner. This effective ways to collaborate remain involved? species of adviser, however, has Ken McCracken, internally, and across different • In future what will the owners do, formerly a solicitor, become largely extinct and it is is a family business organisations. It entails focusing especially if Eleanor and John inherit unlikely that such retrospectives consultant and on the needs of a family and shares but resist the hints to come and will support the challenge of teacher, and a Fellow their business and anticipating join the business? serving today’s family businesses. (and from later this the challenges as ownership and • What effect will John’s news have year, board member) However, nor can all the leadership pass across generations. on future planning? of the Family Firm challenges in a family business be Institute. He is also the And it is about grappling with • Do David, Eleanor and John want to be reduced to a series of problems to author of the STEP the reality created by family in business together, at all? which separate specialists provide courses mentioned and business relationships The Wilson family would like to hear from discrete technical answers. While in this article. always interacting. you if you are able to help them as a family, e: [email protected]; family business affairs are too w: www.m-fbc.com The question remains, would as individuals and as a business. complex to be served by a single you like to help?

July 2020 \ 25 BENEVOLENT FUND

Support in time of need Anticipating additional demand from within the profession due to COVID-19, Andrew Stevenson reminds readers of the two trusts comprising the Scottish Solicitors’ Benevolent Fund

Q. What does the Fund do? Q. Does the applicant have to account A. Broadly speaking, it makes grants of money for how the grant has been used? to solicitors in Scotland or the dependants of A. We would expect to see evidence such solicitors. that the money has been spent for its intended purposes. Q. Are there restrictions on how it can do that? Q. Does the application need to A. Yes. The money in the Fund can be paid be supported by a solicitor? out only in accordance with the purposes A. No. of one of the two separate trusts under which it is held. Q. Do you ask for the names and addresses of referees? Q. What are these trusts? A. No. A. First, there is the general Scottish Solicitors’ Benevolent Fund. It was established in 1961 Q. What is the effect of the by a deed of declaration of trust. The trust coronavirus lockdown? purposes are very broad indeed: its funds shall A. As we know, the 2020 Regulations create be held “for any purpose which the Trustees rules about travel and they create criminal may consider to be for the benefit of such of offences for breaches of those rules. Non- the Beneficiaries as may… be in necessitous It distributes money for the purpose of essential travel is prohibited and the trustees circumstances”. The beneficiaries are solicitors providing holidays in Scotland. Grants are cannot facilitate a breach of the regulations in Scotland or their dependants. made to provide rest, a change of air and in any way whatsoever. However, the situation recuperation in Scotland. is continually evolving: every application will Q. How does someone apply? be judged on its own merits rather than under A. The application has to be supported by Q. Are applications made directly any blanket policy, and the lockdown won’t a solicitor, and we ask for the names and to the Tod Endowment Trust? last forever. addresses of a couple of referees; they don’t A. No. The trust gives sums of money to the have to be solicitors. We have a form which Scottish Solicitors’ Benevolent Fund so that we Q. Who are the trustees of the Scottish has to be completed and sent to us. All the can administer it and distribute it in accordance Solicitors’ Benevolent Fund? information is treated confidentially. The with the purposes of the Tod Endowment Trust, A. The present trustees are the President and form asks about the applicant’s personal and i.e. “to defray the cost of obtaining rest or Vice President of both the Scottish Law Agents financial circumstances. Most of the people who recuperation in Scotland”. Society and the Law Society of Scotland, apply at the moment are in poor health, but that together with several other senior officers. isn’t a prerequisite for making an application. Q. Who is entitled to apply? All that matters is that there are “necessitous A. Those who have been in practice as Q. Where can applicants get application circumstances”. We fully expect the economic solicitors in Scotland for at least two years forms or further information? damage caused by COVID-19 to create those for before application, together with their spouses, A. Forms are available from many practitioners and their families. partners and dependants. [email protected] or by writing to The Secretary, Scottish Law Agents Q. Does an applicant have to say Q. How do they apply? Society, 14 The Firs, Millholm Road, Cathcart what he or she wants? A. Again, we have a form which has to G44 3YB. Specific enquiries should be directed A. No. We simply decide whether the applicant be completed and sent to us, and all there too. Both the trusts that I’ve mentioned should be given a grant of money. If we think information is treated confidentially. The are registered with OSCR, and general that he or she should be given a grant we then form does not ask about the applicant’s information can be found on its website. decide how much to pay, and we pay it. personal or financial circumstances.

Q. Does the applicant have to account Q. Does an applicant have to say for how the grant has been used? what he or she wants? Andrew Stevenson A. No. A. Yes. We ask the applicant to say how is secretary to the much is sought and the purpose and reason committee of the trustees Q. What is the second trust that for the application. We look for vouching, e.g. of the Scottish Solicitors’ you mentioned? a quotation from a hotel or other evidence of Benevolent Fund A. It is named the Tod Endowment Trust. travel costs.

26 / July 2020 Briefings

by amendment. The action had commenced Designation of parties Management under the chapter 43 procedure. Following a Although the decision of the Inner House in direction from Lord President Gill in 2013, this MH v Mental Health Tribunal of Scotland 2019 and other similar actions were to proceed as SC 432; 2020 SCLR 240 deals with inter alia matters ordinary actions. The action had a somewhat the anonymisation of parties’ names, it is Review of case management decisions in the chequered procedural history and, in March worthwhile to repeat the observation of the Court of Session and a new ordinary cause rule 2019, the Lord Ordinary ordered the pursuer to Lord President relating to the designation of providing for proof management hearings are lodge a minute of amendment, no doubt to push parties care of solicitors. Such a step has to among the matters surveyed in this month’s matters forward procedurally, the action having be justified by averment. This is not new but roundup from the civil courts. been raised in 2012. However, while Lord Gill’s is sometimes overlooked. direction was considered a sufficient basis for that order, there had been no actual provision Interim orders – Civil Court for adjustment and no closing of the record – defamation actions hence the significance of Sellars. Further, having In British Gas Trading v McPherson [2020] CSOH LINDSAY FOULIS, SHERIFF AT PERTH regard to the requirements of chapter 43 and 61 (13 May 2020), Lady Poole reaffirmed that in what was required for an ordinary action in actions of defamation the test for the grant of relation to averments, an expansion of what had interim interdict was more testing than in other Review of case been initially pled was undoubtedly required. actions in which such a remedy was sought. management decisions In any event, the case as initially pled was The combination of article 10 of the European In SA v PA [2020] CSIH 24 (10 March 2020) fundamentally the same as the one proposed Convention on Human Rights and s 12 of the the issue before the Inner House was the in the amendment. Human Rights Act 1998 resulted in the court decision to allow a proof before answer rather requiring to be satisfied that the pursuer was than appoint the case to debate. Delivering the Skilled witnesses likely to succeed in the remedy of perpetual opinion of the court, Lord Malcolm observed A word of warning from the decision of Lord interdict. The balance of convenience had also that RCS, chapter 42A provided the judge at first Tyre in McCulloch v Forth Valley Health Boards to favour the grant of interim interdict. instance with wide powers to manage an action [2020] CSOH 40 (7 May 2020). A skilled witness The order required to leave a defender in no to achieve efficient determination. Decisions in was instructed and duly prepared a report. The doubt as to its extent, and could be no wider than that regard were to be treated with considerable report, when provided, correctly listed all the necessary to protect the legitimate interests of respect and deference. Arguable grounds for documents with which the witness had been the pursuer. Where the material complained of adopting a different course would not justify provided and which had been considered in was journalistic or literary, particular regard had overturning the decision. A case management the preparation of the report. These documents to be had to the right to freedom of expression decision could only be interfered with if it was included certain statements from witnesses. and the extent to which the material was or clearly erroneous in that it was not a decision Once the report was in the hands of the was about to become available to the public, open to a reasonable first instance judge. solicitors, the witness was requested to prepare and whether it was in the public interest that The court further observed that reserving another copy of the report, excluding reference publication occurred. A similar test applied to questions of law until after evidence had been to a number of the witness statements. This interim orders ad factum praestandum, as set out led was often either preferable or justifiable. exercise eventually came to light. by her Ladyship in the follow-up opinion [2020] This was particularly the case where the The first observation made by Lord Tyre CSOH 62 (29 May 2020). sustaining of a preliminary plea would not was that when the report was provided to the dispense with the need for evidence. other party’s representatives, it represented Objections to evidence an inaccurate statement of the information Nothing new as such – simply a reminder. Amendment after relied on. Although not specifically commented In sustaining two objections to questions limitation period on in this respect, it strikes me that a logical in McMahon v Grant Thornton LLP [2020] The decision of the First Division in Cowan v consequence of this could be a penalty in CSOH 50 (26 May 2020), Lord Doherty Lanarkshire Housing Association [2020] CSIH expenses. Of greater significance was the noted that an ordinary witness must confine 26; 2020 SLT 663 visits this area once again. observation that the exercise undertaken was themselves to matters of fact. Any inference In many respects the procedural history one which should not have been instructed or or conclusions to be drawn from that evidence renders the ultimate decision case specific. followed, even though some of the statements were matters for the court. A similar observation That said, however, there are some points might well have been subject to legal privilege. was made regarding asking an ordinary witness worth remembering. The Lord President refers As a consequence, the impartiality of the skilled to express an opinion. to Sellars v IMI Yorkshire Imperial 1986 SC witness was potentially impugned. This clearly 235. I always viewed this decision as one to could have had fatal consequences. Expenses remember. In essence it said that provided an In sheriff court litigation, in terms of OCR, rule action was raised within the limitation period, 32.1A an account of expenses should be lodged the averments could be altered beyond all within four months after final judgment or any recognition provided this was before the time thereafter with the sheriff’s permission. The record closed. It was only if such a change was Update pursuer in Scott v Prestwick Aircraft Maintenance proposed by way of amendment that the court Since the last issue, Heriot-Watt University [2020] SC EDIN 24 (30 March 2020) failed to had the right to regulate any such change. v Schlamp (May article) has been reported lodge an account within four months. A motion By reference to this decision, the Inner at 2020 SLT (Sh Ct) 103 and 2020 SCLR was accordingly enrolled to allow the account House considered it could re-examine the 415, and LRK v AG (November 2019) at to be lodged late. In considering the opposed Lord Ordinary’s reasoning in refusing the 2020 SCLR 325. motion, Sheriff Braid noted that rule 32.1A pursuer’s application, notwithstanding it was did not impose an absolute requirement

July 2020 \ 27 Briefings

that the account be lodged within four months, Any proof can be discharged. A diet of or refer to failure to lodge an account within proof can be assigned. The management Licensing the period as non-compliance. The issue hearing can be continued. Clearly this power accordingly was not one of relief for non- envisages, inter alia, that evidence presented TOM JOHNSTON, ORMIDALE LICENSING SERVICES compliance. It was simply whether the account orally in court may well become the exception should be allowed after the four month period, rather than the norm. The sheriff has an all which was considered a reasonable period encompassing power to make such order as I genuinely can’t remember how long ago within which to prepare and lodge an account to secures the expeditious progress of the cause. I started writing the licensing column for the allow the opponent to have notice of the extent In personal injury actions under chapter 36 the Journal. I moved firms in 2001, and it was of liability. sheriff ex proprio motu can discharge a diet or certainly before that. The other day I realised The court accordingly had to determine sist the action. with a start that over six years have passed whether it was appropriate in all the since I retired from practice. My justification circumstances for the account to be lodged. Postscript – looking in continuing was my involvement with Although no cause was required, there needed to the future Fife Licensed Trade Association, latterly as to be some factual basis to allow the court On 19 June 2020 Lord President Carloway secretary, which maintained a direct link with to exercise its discretion. Factors such as issued a statement on the future of the courts. the trade, many of them past clients. As I have relative prejudice, the length of delay and the In a wide ranging statement it is worth noting relinquished that as well, the time has come to reason, and steps taken to rectify the error, the following comment: “Virtual courts and divert the keyboard to the many other projects once discovered, were all relevant. The litigant online services should, and now will, be viewed which I have. found liable in expenses was entitled to know as core components of the justice system, I thank the Editor for the opportunity for a the extent of that liability within a reasonable rather than short term, stopgap alternatives brief chance to reminisce. My first appearance period. In the present instance, Sheriff Braid to appearances in the courtroom.” Later in the at a licensing board came the year after the took account of the extent of the liability, which statement his Lordship observed: “More written 1976 Act came into force. As an apprentice I was not insignificant, and the delay of less than submissions and online processing of civil was sent to the Edinburgh board, with about two weeks; and of the duration of the litigation business will become a reality.” Practitioners 400 people crammed into a room designed itself, over which the defenders had been will no doubt be familiar with the content of for half that number. It was also the first time unaware as to their liability in damages. The practice notes and guidance which have been I had ever had to use a microphone, part of a delay was not wilful and it had not occurred issued regarding civil business since March. decrepit sound system which meant your own in the face of reminders from the party liable. Without wishing to adopt the “I told you so” words came back to you a second or so later. It arose as a result of human error promptly approach, I have always considered it likely The word terrifying doesn’t begin to do justice rectified once noticed, albeit there had been no that what was set out in these would constitute to the experience. attempt to draw the opponent’s attention to the a template for the future conduct of civil matter of lateness. He granted the motion. business. These comments make it clear that Back in the day In terms of rule 32.1A, conditions can this would indeed appear to be the case. The licensed trade then bore no resemblance be imposed to such a grant. Sheriff Braid to that of 2005. You knew exactly what a pub considered that modification of the expenses was and what you would get. They closed in was not competent, as this would have the the afternoons. With a very few exceptions, effect of altering a prior interlocutor. Instead food was a pie or, in exotic places, a bridie. he ordered that the pursuer pay the expense Despite extensive research I never did find of the motion and the expenses of the byelaw which decreed that these had any taxation. to be three days old before they could be sold, two of those having been spent in Act of Sederunt a lukewarm cabinet. There had always The Act of Sederunt (Rules of been genuine hotels, but so many of the the Court of Session 1994 and establishments holding hotel licences Sheriff Court Rules Amendment) were there simply to enjoy that prized (Miscellaneous) 2020 (SSI 2020/166) asset – Sunday opening. came into force on 2 June 2020. It Pubs themselves were allowed for introduces a proof management hearing the first time to apply for extended into ordinary actions in the sheriff hours. This more than anything court. Such a hearing may be assigned emphasised the patchwork quilt ex proprio motu if a proof diet has been nature of licensing in Scotland. discharged, adjourned or continued to Some boards embraced this a later date. At this hearing the sheriff enthusiastically. Those patrons is tasked to ascertain whether the action who were accustomed to leave can proceed to proof or the continued proof, premises only when the bell for and in particular, when the parties expect last orders had sounded to be able to proceed to proof, witness were discomfited to realise that availability, whether witnesses require this might to attend or whether the evidence can be be seven hours hence. And taken remotely, and if so, how that might be afternoon opening? In some achieved. The extent of use of affidavits is also areas this would only be to be investigated. permitted if you could

28 / July 2020 persuade board members of a tourism benefit. As a solicitor with a significant client base in Enforcing Lochgelly and Cowdenbeath conditions this was a challenge. The numbers of new licensed premises At the start of soared. In the 1950s and 60s, the licensed the outbreak, trade was a lucrative one and not unduly SG indicated arduous. As a publican your premises could (Chief Planner’s open for a maximum of 51 hours per week, letter, 11 March and your clientele was relatively easy to 2020) a relaxation please. Greater affluence and foreign travel of enforcement changed public expectations. The fear of losing regarding the out to the competition led licensees to seek operation of ever longer hours. supermarkets, other In many ways of course, competition is not retailers and distribution unhealthy. Standards rose, and food became centres. Many of these an important part of any licensed offering. developments are subject to controls (usually on 24 April, Children’s certificates were a game changer, planning conditions) restricting the timing of temporarily fulfilling at last Christopher Clayson’s aim of delivery and other vehicles within set hours, suspending the demystifying licensed premises and making usually in order to minimise adverse effects on requirement for (1) holding a public them more child friendly. It is unfortunate that residential amenity. The letter acknowledges event for pre-application consultation; (2) a some licensing boards used the 2005 Act to that flexibility is needed in order that retailers local view body to meet in public; and (3) paper set this back in some areas. can accept deliveries throughout the day and copies of EIA reports to be accessible to view night. Accordingly, SG makes it clear that at public places. SG has published guidance for Art of persuasion planning authorities should adopt a positive online conduct of public events. The era of the lawyer as general practitioner approach to the industry, to ensure that In force on the same date, the Town was coming to a close. The notion that if you planning controls are not a “hard barrier to food and Country Planning (General Permitted did the occasional stint at the sheriff court you delivery over the period of the coronavirus”. Development) (Coronavirus) (Scotland) would be a good licensing lawyer persisted for A further letter dated 18 March 2020 Amendment Order 2020 grants permitted a while, but the more canny board practitioners indicated a similar relaxation of enforcement development rights (planning permission) for a realised early on that it’s much more akin to in relation to public houses and restaurants, local authority or health service body (subject public speaking. Quoting case law or the like indicating that planning authorities should not to certain restrictions) to build and operate was generally seen as an acknowledgment of undertake enforcement action which would emergency healthcare facilities. These rights a weak case, and instructing counsel meant you unnecessarily restrict them from providing expire on 31 December 2020. knew you had no chance and were looking for takeaway services. someone else to blame. Both measures were intended to be in place Developments The majority of my columns have probably for three months, and to be reviewed with the SG has also published interim guidance been on the subject of reform. The need for intention to withdraw them once the immediate on consultation and engagement on it; its genesis and inception; its flaws. Sad to urgency has subsided. development plans and encourages these say, one thing has been a constant, namely to be progressed through digital engagement woeful failure on behalf of Governments, both Coronavirus (Scotland) Act 2020 alongside one-to-one opportunities within in London and Edinburgh, adequately to listen This Act came into force on 7 April and (1) physical distancing requirements. to, and provide consistency for, one of the most extended the duration of planning permissions The Chief Planner’s letter dated 20 May important sectors in our economy. (including permissions in principle) due to 2020 provides additional and helpful guidance expire during the “emergency period” (7 April on a number of specific issues regarding the to 6 October 2020) until 6 April 2021; (2) planning system: enables the publication of planning documents Site visits. Although not mandatory, it is online as a substitute for requiring them to be sometimes helpful for an officer and/or decision available to view at physical locations; and maker to visit a site to better understand the Planning (3) enables all committee meetings (including location and setting. The guidance indicates planning committees) to take place without the that a site visit may not be necessary due to ALASTAIR MCKIE, PARTNER, public attending. use of satellite imagery and videoconferencing, ANDERSON STRATHERN LLP In force on 27 May, the Coronavirus but should they be necessary they must be (Scotland) (No 2) Act 2020 extended the conducted subject to physical distancing. This article summarises the legislative and policy duration of listed building consents and Planning committees and local review steps that the Scottish Government (SG) has conservation area consents due to expire in the bodies. The guidance supports and encourages undertaken since March to ensure the continued “emergency period” (27 May to 6 October 2020) online meetings, and indicates that authorities operation of the planning system during the until 6 April 2021. should aim to broadcast meetings either live COVID-19 crisis. These steps are welcome and or in a recorded form as soon as possible recognise the importance of a well-functioning Temporary regulations thereafter in order that members of the public planning system in assisting economic and social The Town and Country Planning (Miscellaneous can observe proceedings. recovery and allowing appropriate development Temporary Modifications) (Coronavirus) Section 75 agreements. These need to proposals to be consented. (Scotland) Regulations 2020 came into force be registered to enable related planning

July 2020 \ 29 Briefings

permissions to be issued. Registers of Scotland (RoS) has a digital submission portal which is accepting applications to register deeds in the Land Register. If a s 75 agreement must be recorded in the Sasine Register, contact RoS to arrange for an application to be escalated to a senior adviser. RoS is working on a digital solution for the Sasine Register.

Insolvency ANDREW FOYLE, SOLICITOR ADVOCATE, JOINT HEAD OF LITIGATION (SCOTLAND), SHOOSMITHS electronic signatures on most forms under the courts have already begun to rely on the bill to 2016 Act, and for virtual creditors’ meetings. refuse petitions presented (see Re: A Company Insolvency law has moved rapidly over the • Extension of the period of time for a trustee (Injunction to Restrain Presentation of Petition) last three months due to the economic effects to propose a debtor contribution order from [2020] EWHC 1406 (Ch)). of coronavirus. Fundamental changes have six to 12 weeks. To offset some of the effects, the bill been made, with more in the pipeline. What • Finally, the Act also provides for the reopening proposes to extend the period after which follows is merely an overview of the changes of the register of inhibitions. One consequence certain transactions such as unfair preferences as at 15 June 2020. of this is the ability now to register warrants to may be challenged by six months. cite in that register as required. Personal insolvency measures Permanent measures First, the Coronavirus (Scotland) Act 2020, Corporate insolvency measures Permanent measures introduced by the which came into force on 7 April. In addition At time of writing, the Corporate Insolvency and bill include: to introducing measures to protect tenants, the Governance Bill is about to go to the committee • A new moratorium for companies preventing Act affects the moratorium on diligence under stage at the House of Lords. Once in force, it enforcement action whilst companies the Bankruptcy (Scotland) Act 2016. It provides will introduce major change to the corporate investigate a rescue option. that the period of moratorium shall be extended insolvency landscape. Some of those changes • An extension of the prohibition on termination from six weeks to six months. It also temporarily will be temporary, in reaction to the coronavirus of supply contracts, currently applying to removes the prohibition on a debtor applying pandemic. Others are intended to be permanent, utilities contracts, so that insolvent businesses for more than one moratorium in a 12-month based on proposals which have been under may maintain supplies whilst they continue period. The Act will remain in force until at least consideration for a number of years. to trade. 30 September 2020, but with the ability for the • The introduction of a new restructuring plan Parliament to extend its provisions, potentially Temporary measures procedure, similar to the existing scheme of until 30 September 2021. Among the most eyecatching of the temporary arrangement procedures, but with different The Scottish Parliament subsequently measures introduced to protect business during voting and approval procedures. passed the Coronavirus (Scotland) (No 2) Act the pandemic is the suspension of the wrongful Each of these measures is deserving of an 2020, which came into force on 27 May. This trading rules. As with most of the bill, the effect article of its own. It is a testament to the Act introduced further temporary changes of this provision will be backdated to 1 March speed and extent of change that they must to personal insolvency law. As with the first 2020. It achieves its objective by introducing a be treated as mere footnotes for the purpose Coronavirus Act, the provision are subject presumption that a director is not responsible of this briefing. to expiry on 30 September 2020 unless for any worsening of the financial position of the extended. The maximum extension will be company during the pandemic. to 30 September 2021. The other retrospective temporary measures The main provisions of the No 2 Act affecting introduced by the bill relate to winding up insolvency are: petitions. The bill will prevent a creditor relying • An increase in the minimum debt level above on a statutory demand to found a winding up Tax which a qualified creditor may commence a petition if that demand was served between CHRISTINE YUILL, petition for sequestration, from £3,000 1 March and 30 June 2020, and the petition PARTNER, AND ZITA to £10,000. was commenced on or after 27 April. The bill DEMPSEY, SOLICITOR, PINSENT MASONS LLP • Reductions and waivers of certain fees also requires the court to refuse any petition for for debtors who seek to have themselves winding up where the court is not satisfied that sequestrated under the MAP (minimal asset a company’s inability to pay its debts was not The Coronavirus Job Retention Scheme process) or bankruptcy application procedure. caused by the pandemic. (commonly known as the furlough scheme) • Allowing increased use of electronic Much has been written on the retrospective has been a necessary lifeline for businesses communications in sequestrations governed by nature of these provisions and the potential during the COVID-19 pandemic since it was the 2016 Act. The Act also allows for the use of effect on petitions already decided. The English first announced by Chancellor Rishi Sunak on

30 / July 2020 IN FOCUS Finance Bill 2020 The Finance Bill 2020 was published on 19 March and is currently working its way through Parliament. The bill includes draft ...the point is to change it legislation published by HMRC confirming that Brian Dempsey’s monthly survey of legal-related consultations sums received under the furlough scheme are subject to either income tax or corporation tax, as relevant. The draft legislation also gives Children’s hearings: COVID especially from people with protected HMRC the power to investigate and recover Children’s Hearings Scotland and others characteristics under the Equalities Act 2010 payments made under the scheme where the seek to better understand the experiences or who may be considered vulnerable or recipient was not entitled to those payments of everyone involved in hearings during disadvantaged. See covid19iag.citizenspace. or where the payments were not used by the COVID-19 lockdown. See www.celcis. com/iag/police-powers-review/ employers to cover employee costs. org/knowledge-bank/protecting-children/ Respond by 1 September via the If, however, the non-compliance with the childrens-hearings-research/ above web page. furlough scheme was deliberate, the draft Respond as soon as possible via legislation gives HMRC the power to impose the above web page. Domestic abuse penalties as appropriate, but only if it was not and employment notified about the non-compliance within 30 days. HMRC has advised that it is not trying to The UK Department for Business, Energy Scottish budget catch people out and will only use this power in & Industrial Strategy is considering how Holyrood’s Finance & Constitution Committee the most serious of cases, but employers should workplace support can be provided to is inquiring into the impact of COVID-19 on the use the time before the legislation comes into persons experiencing domestic abuse. See Scottish Government’s budget for 2021-22. force to review their furlough scheme claims, questions at www.gov.uk/government/ It welcomes views on all aspects including ensure that their employees are genuinely consultations/support-in-the-workplace-for- what the Government’s priorities should be furloughed and the grant has been used for the victims-of-domestic-abuse-call-for-evidence and what fiscal adjustments are needed in correct purposes. Respond by 9 September to domesticabuse. response to the impact of the virus. See The draft legislation also gives HMRC the www.parliament.scot/parliamentarybusiness/ [email protected] power to make company officers jointly and CurrentCommittees/115303.aspx severally liable for any tax charge imposed Respond by 7 August to finance. Food poverty where that officer was responsible for making [email protected] Labour MSP Elaine Smith seeks views on a fraudulent furlough scheme claim. However, her proposed Right to Food (Scotland) Bill. to use this power, HMRC must be able to show Lobbying legislation This would enshrine the human right to food that there is a serious risk that the company itself will be unable to pay the tax due. Holyrood’s Public Audit Committee seeks recognised by the United Nations into Scots views on the operation of the Lobbying law, and create an independent statutory body Corporate criminal offence (Scotland) Act 2016 – has it met its “to oversee Scottish food policy to ensure that With so many individuals currently furloughed, aim of introducing “a measured and no one goes hungry”. See www.parliament. some managers may seek to additionally proportionate register of lobbying activity”, scot/parliamentarybusiness/Bills/115201.aspx support their employees by making “off book” or could improvements be made? See www. Respond by 15 September via the top-ups to furlough payments. In this situation, parliament.scot/parliamentarybusiness/ above web page. HMRC could pursue the employer company CurrentCommittees/115336.aspx for the corporate criminal offence of failing to Respond by 14 August via the Children at 16+? prevent the facilitation of tax evasion. above web page. Should the age limit for new (as opposed to If HMRC was to launch such an investigation continued) referral to the children’s hearings it would be for the company to demonstrate that Police COVID powers be raised from 16 to 18 years, in line with it had reasonable prevention measures in place The Independent Advisory Group led by the expectation in the UN Convention on the to mitigate this risk. Given that the risk is very John Scott QC seeks experiences of the use Rights of the Child? See consult.gov.scot/ new, and COVID-19 specific, it is not expected of additional police powers granted in light children-and-families/age-of-referral-to-the- that many businesses will have such measures of COVID-19, including ordering the closure principal-reporter/ in place. However, employers should consider of “non-essential” businesses and restricting Respond by 7 October via the above regularly reviewing furlough scheme claims to freedom of movement and assembly, web page. ensure at least some mitigation of the risk of scheme breaches by their management. If the business does not have reasonable prevention procedures in place and someone lower down 20 March this year. Until 1 August, it allows conditions of the scheme is that employees the management chain facilitates employees employers to claim 80% of the normal pay and cannot be asked to undertake “remunerative under their control to evade tax due, that is national insurance contributions of employees work” while furloughed, a condition that is not sufficient to establish the offence. designated as furloughed, up to a cap of always met by employers receiving the grant. HMRC can also pursue employers under £2,500 per month. Given the huge cost to the state, it is no surprise the corporate criminal offence legislation if It is estimated that over 8 million individuals that, as administrator of the scheme, HMRC furloughed employees are continuing to work. are currently furloughed, costing around is implementing various methods to deal with HMRC encourages furloughed individuals £14 billion each month. One of the main fraudulent claims. to report if this is the case, and has made

July 2020 \ 31 Briefings

it clear that it can still pursue the employing company even if it has not convicted the individual taxpayer. HMRC has also explained that if a taxpayer voluntarily comes forward, “it may not be in the interests of justice” to prosecute them for non-compliance with the scheme. Upcoming scheme changes As of 1 July, furloughed employees have been able to return to work on either a full or part time basis, with the furlough scheme continuing to cover the hours that the employee is not working. The scheme will then be scaled back each month from 1 August before closing on 31 October. The scaling back of the grant and its implementation for part time employees will make it more difficult to implement correctly. Although HMRC claims that it will not penalise innocent mistakes, it has already received thousands of reports of “furlough fraud” and is expected to review these. Employers are therefore advised to tread carefully and ensure that any mistaken furlough scheme claims that come to light are notified to HMRC as soon as possible.

Immigration the Home Office has in effect managed to and is therefore ultra vires; and (6) the policy fails DARREN COX, TRAINEE circumvent any such challenge by reforming the to ensure that imposing an NRPF condition will SOLICITOR, LATTA & CO policy to comply with any legal deficiencies (see not result in inhuman treatment contrary to article for example, R (Khadija BA Fakih) v Secretary 3 ECHR. The Home Office’s “no recourse to public funds” of State for the Home Department IJR [2014] Prior to the hearing, the Home Office (NRPF) policy has long been controversial. Part UKUT 513 (IAC)). More recently, following the conceded that the challenge against the of the wider “hostile environment” measures, in widespread closure of businesses in response policy raised serious issues that required to be general the NRPF condition is imposed on non- to the UK Government’s COVID-19 lockdown, the reviewed and determined by the court urgently. EEA migrants who obtain temporary residence policy has come under closer scrutiny. In R (W, a It also introduced revised guidance, on 1 April in the UK (and have to apply for sequential child by his litigation friend J) v Secretary of State 2020, in light of applications being made to have grants of leave to remain, normally every two for the Home Department [2020] EWHC 1299 the NRPF condition lifted during the pandemic. and a half years). (Admin), the child of a single mother sought The basis for its imposition originates from urgent suspension of the policy for those unable Facing destitution s 3(c)(ii) of the Immigration Act 1971, since to work due to COVID-19. As for the court, the focus of the decision was restated in the Immigration Rules (IR), in There were six grounds of challenge: (1) the primarily on the article 3 ECHR ground. The particular para 276BE(1) and GEN 1.10 of NRPF condition in the child’s case breached s 55 judgment confirms the earlier opinion of the Appendix FM. It renders the individual ineligible of the Borders, Citizenship and Immigration Act House of Lords in Limbuela [2006] 1 AC 396 that for almost all benefits paid by public funds. 2009, which requires the best interests of the the threshold for a breach of article 3 is higher The power to impose an NRPF condition is child to be a primary consideration; (2) adoption of than that required for a finding of destitution discretionary and should not be used where: the policy failed to have regard to the differential within s 95(3) of the Immigration and Asylum (1) an applicant is destitute; (2) an applicant impact on British children of foreign parents, Act 1999 (s 95 being the provision under which would be rendered destitute without recourse non-white British children and single mothers, asylum seekers are generally provided with to public funds; (3) particularly compelling contrary to s 149 of the Equality Act 2010; (3) the support while a decision on their asylum claim/ reasons relating to the welfare of a child exist policy directly or indirectly discriminates against appeal is pending). on account of a parent’s very low income; or (4) those of non-British national origin or ethnicity; Given that what was under challenge other exceptional circumstances apply. (4) the policy is “collectively overbroad and/or was provision made in the IR (defined as insufficiently precise”, and hence contrary to the “subordinate legislation” by the Human Rights COVID-19 circumstances rule of law; (5) the policy deprives British citizens Act 1998) and the Home Office “Instruction”, Introduced in 2013, the NRPF policy has been from entitlements provided to prevent children the court began by setting out the tests the subject of challenge in the past, albeit falling into homelessness and extreme poverty, applicable to such challenges, namely that the

32 / July 2020 scheme was “incapable of being operated in position of a boundary fence. He did not disclose nature towards the secondary complainer and a proportionate way in all or nearly all cases”. this to the other side. A question arose as to which were capable of bringing the profession The court held that neither GEN 1.11A of the whether that issue ought to have been disclosed into disrepute; (d) sent emails to the secondary IR nor the Instruction explicitly set out that as an outstanding “dispute”. The Tribunal found complainer’s mother on 2 April 2014 which caseworkers were under an obligation not to that the respondent’s conduct did not constitute were inappropriate and offensive in their nature impose, or to lift, an NRPF condition where an a serious and reprehensible departure from the towards the secondary complainer, which drew applicant was suffering or would imminently standards of competent and reputable solicitors. the respondent’s integrity into question and suffer article 3 mistreatment (nor was there any There was insufficient specification of the issue thereby constituted a breach of rule B1.2 of the mention of the latter in GEN 1.11A). These defects to categorise it as a “dispute”. In any case, the Practice Rules 2011. could not be, as the Home Office had submitted, respondent considered that the matter was The Tribunal censured the respondent considered “purely technical defects devoid of resolved and was entitled to rely on the client’s and awarded £750 compensation to the significance in the real world”. Rather the IR reassurance in that regard. The client had been secondary complainer. and Instruction appeared to confer the decision advised that the matter would require to be It is a fundamental principle that a solicitor maker with discretion, rather than an obligation, disclosed if not resolved. requires to be a person of integrity. By sending with the effect of misleading caseworkers and inappropriate, derogatory and offensive emails giving real risk of unlawful decisions potentially to clients, the respondent allowed his integrity in breach of article 3. Although at first glance Caroline Rose Goodenough to be called into question. The Tribunal noted this may appear to be a conflation of destitution A complaint was made by the Council of the particularly that the respondent was aware and inhuman and degrading treatment, the Law Society of Scotland against Caroline Rose of the secondary complainer’s mental health court also noted (in line with Limbuela) that an Goodenough, now with Keenan Solicitors, background and this made his comments individual who is destitute or facing destitution Greenock. The Tribunal found the respondent particularly offensive. These comments with NRPF would meet that threshold (and, in guilty of professional misconduct in respect that were capable of bringing the profession into any event, the policy would be unlawful under she failed to act with integrity, misled others disrepute. The conduct was a serious and common law). and breached rules B1.2, B1.10 and B1.14 of the reprehensible departure from the standards While the case related to an applicant with Law Society of Scotland Practice Rules 2011. of competent and reputable solicitors and a dependent child, the implications of the The Tribunal censured the respondent and fined therefore constituted professional misconduct. judgment are much further reaching for anyone her £3,000. The Tribunal noted that the professional applying for their NRPF condition to be lifted. The respondent misled the secondary misconduct took place during a 24 hour period Where an applicant can show that they are complainer and her then client relations in an otherwise unblemished career. The destitute or will imminently become destitute manager regarding progress on a guardianship respondent had cooperated with the fiscal and without recourse to public funds, the Home application and whether legal aid had been the Tribunal. He had demonstrated remorse Office is under an obligation not to impose, or granted. She failed to act with competence and insight. He had attempted to minimise the to lift, the NRPF condition. Given the damage to and diligence. The respondent was given impact on the secondary complainer by offering the economy expected to follow the end of the many opportunities to check the file or Legal to meet and apologise. On the scale of solicitor’s pandemic, the judgment is a positive step for Aid Online, and did not do so, even although wrongdoing, the Tribunal considered the those who find themselves in such a situation she was specifically asked about the grant of misconduct to be at the lower end. Accordingly, in the future. legal aid. Failure to do so was reckless. She it censured the respondent. repeatedly misled others with regard to legal aid and medical reports. The Tribunal accepted that she was suffering workload and stress Morag Wilson Yellowlees problems. Her conduct in these circumstances A complaint was made by the Council of the fell short of dishonesty but demonstrated a lack Law Society of Scotland against Morag Wilson of integrity. Yellowlees, Lindsays, Edinburgh. The Tribunal Scottish Solicitors’ found the respondent guilty of professional Discipline Tribunal misconduct in respect of her breaches of Ross James Porter rules 3 and 5(2) of the Solicitors (Scotland) WWW.SSDT.ORG.UK A complaint was made by the Council of the Practice Rules 1986 and rules 3 and 6 of the Law Society of Scotland against Ross James Solicitors (Scotland) (Standards of Conduct) Porter, solicitor, Perth. The Tribunal found the Practice Rules 2008. The Tribunal censured the Christopher James Forrest respondent guilty of professional misconduct in respondent and fined her £5,000. A complaint was made by the Council of the respect that he (a) sent emails to the secondary The respondent accepted instructions in 2010 Law Society of Scotland against Christopher complainer on 1 and 2 April 2014 in terms which to act on behalf of three parties in connection James Forrest, formerly solicitor, Falkirk. The were inappropriate, derogatory and offensive with the purchase of a property and its Tribunal found the respondent not guilty of in their nature and which were capable of financing. There was a clear conflict between professional misconduct. The Tribunal did not bringing the profession into disrepute; (b) the interests of the parties. The respondent’s consider that the conduct established might sent emails to the secondary complainer on conduct constituted a serious and reprehensible meet the test for unsatisfactory professional 1 and 2 April 2014 which were inappropriate, departure from the standards of competent conduct and therefore declined to remit the derogatory and offensive in their nature, which and reputable solicitors. The conflict of interest complaint to the Council in terms of s 53ZA of drew the respondent’s integrity into question between these parties was obvious. The fact the Solicitors (Scotland) Act 1980. and thereby constituted a breach of rule B1.2 of that the respondent identified it, yet failed to The respondent was the solicitor acting for the the Practice Rules 2011; (c) sent emails to the take appropriate steps, was an aggravating seller in a conveyancing transaction. An issue secondary complainer’s mother on 2 April 2014 factor, as was the continuing risk of prejudice to arose with a residents’ association regarding the which were inappropriate and offensive in their one of the parties.

July 2020 \ 33 Briefings Rights to buy: the new addition The right to buy land to further sustainable development, enacted in 2016, has finally been brought into force, with supporting regulations. What do practitioners need to know?

The older forced transfer rights to buy It is not possible to explore those Property only apply in narrow circumstances. One is of existing rights to buy here. Anyone wishing limited geographic application, where a crofting more information can look to the Scottish MALCOLM COMBE, SENIOR LECTURER community wishes to buy croft land, associated Government’s free online guidance, or deeper IN LAW, UNIVERSITY common grazings and local eligible land; the analysis can be found in the relevant chapters OF STRATHCLYDE other is limited by objective parameters relating of Combe, Glass and Tindley (eds), Land Reform to the (mis)management of certain land by the in Scotland: History, Law and Policy (Edinburgh On 26 April 2020, a suite of legislation relating current owner, and only then where a local University Press, 2020). What this note will to Scotland’s newest land redistribution measure community has tried and failed to acquire the focus on is noteworthy features of the new right came into force. The relevant statutory material land by voluntary transfer, all in terms of to buy. It should nevertheless be acknowledged comprises three related Scottish statutory s 97H of the 2003 Act and related regulations that the part 5 scheme shares many features instruments and their mothership, part 5 of (see Stewart, “Community right to buy: the with its predecessor regimes: for example, the the Land Reform (Scotland) Act 2016. It gives a new scope” (Journal, July 2018). The crofting need for a community transferee to form a community the right to force an existing owner community right to buy was introduced in the suitable locally accountable juristic body that is to transfer an area of land that is local to that first Land Reform Act, whereas the right to buy geared towards sustainable development and community in narrow circumstances linked to abandoned, neglected or detrimental land was with a suitable connection to the targeted land, the sustainable development of that land. introduced by the Community Empowerment the requirement for the buyout to achieve local The 2016 Act as a whole contains a wide (Scotland) Act 2015 (see Combe, “Digesting the approval via a ballot, and the need for Scottish range of provisions that affect Scottish land and Community Empowerment Act”, Journal, August ministers to be satisfied that the transfer of land its use, such as through the establishment of 2015, 40). is in the public interest and consistent with the the Scottish Land Commission, the introduction goal of sustainable development in relation to of a scheme for landowners to engage with a the land. Some of these and other points were local community when making important land outlined in the 2016 Journal article referred to use decisions, and laying the groundwork for “The two most important above, and as such the focus here will be on the the Land Rights and Responsibilities Statement, exclusions are croft land scheme as implemented. not to mention copious changes to agricultural tenancies and providing a framework for the – already covered by a Some preliminaries disclosure of information about entities that different community right As noted above, there are three SSIs that control land in Scotland (see Journal, May 2016, augment part 5 of the 2016 Act. These 18). Part 5 of the Act is one of the last pieces of to buy – and land that is are the Land Reform (Scotland) Act 2016 the Act’s jigsaw to fall into place. an individual’s home” (Commencement No 10) Regulations 2020 (SSI 2020/20), the Right to Buy Land to Further Rights to buy compared Sustainable Development (Applications, Like the earlier rights to buy contained in parts Written Requests, Ballots and Compensation) 3 and 3A of the Land Reform (Scotland) Act A forced transfer regime can be contrasted (Scotland) Regulations 2020 (SSI 2020/21), and 2003, part 5 of the 2016 Act allows a forced with a (comparatively weaker) right of pre- the Right to Buy Land to Further Sustainable transfer of heritable property to take place, emption, aka first refusal. That is what is Development (Eligible Land, Specified Types of such that title will move from one private actor conferred by the now well-established Area and Restrictions on Transfers, Assignations to another essentially private actor. Forced community right to buy, which covers the whole and Dealing) (Scotland) Regulations 2020 transfer provisions are not exactly the norm; of Scotland in terms of part 2 of the 2003 Act. (SSI 2020/114). The first of these is a pure they can skew the market, and they can engage The pre-emptive right to buy allows community implementation measure. Explanations of the human rights law (notably article 1 of the First bodies to register an interest in a target area of second and third will follow where relevant; Protocol to the European Convention on Human land with Registers of Scotland, such that the suggestions for catchy abbreviations for them Rights, which protects the peaceful enjoyment existing owner of targeted land will in no way will be warmly received. of possessions). They can, however, exist as be obliged to transfer that land, but in the event Before diving into the minutiae of the regime, part of a legal scheme implemented in pursuit the owner autonomously decides to sell, the it is worth flagging the major innovation in part of the public interest, normally with suitable relevant community body will get first dibs on 5 as compared to the other rights to buy: a compensation to the outgoing owner. the asset. transfer of land need not be to a community

34 / July 2020 body directly. In terms of s 54(1), a community individual’s home: forced transfer of a home There are no exclusions relating to non- body can nominate a “third party purchaser” would be difficult to countenance in terms of domestic land use. When the bill passed in its application to exercise the right to buy. article 8 of the ECHR. The home exclusion does through Holyrood, there were attempts (put This option will allow a community to bring not apply where the resident is a tenant; a sitting forward by the late Alex Fergusson MSP) to a nominee that shares its ethos into its land tenant will in many cases not be affected by a remove land used for businesses like tourism reform plans, bringing fresh ideas and, one change in the landlord’s interest, save in terms and forestry from the statutory scheme itself. imagines, fresh investment to the party. of where rent is to be paid. Regulation 3 of one These were unsuccessful. Any such land would Whether there is a third party nomination of the grandiloquently titled SSIs (SSI 2020/114) have to be considered case by case rather than or not will determine the benchmarks that operates to deem certain types of occupation automatically, although it would seem that any a community body must meet before it can and possession as a tenancy. community trying to make a case for a transfer apply to ministers to buy land. (More on that A community body can also use the right of land that is being used productively would application process below, but for now note to buy in relation to a tenant’s interest in land, face a difficult task. that applications relating to nominees and where that is relevant, if the landlord’s interest That segues to an explanation of the community bodies are assessed by ministers is being (or has been) acquired under the right important point that a community or its nominee in the same way.) If the community body seeks to buy scheme. Again, there are exclusions from cannot simply snipe at any asset. A community to exercise the right to buy itself, it must be the scope of this (including the tenancy of a croft must apply to buy the land, in terms of s 54 a company limited by guarantee, a Scottish and the tenancy of a dwellinghouse) (s 48). (and the Keeper must maintain a register of charitable incorporated organisation, or a The rest of this note will proceed from the any applications, in terms of ss 52 and 53). As community benefit society with constitutional perspective of title to land rather than a tenancy with the older rights to buy, that application is provisions that have relevant standards of being at issue. made to the Scottish ministers. It is for ministers governance and local accountability. Where In terms of reg 4 of SSI 2020/114, the curtilage to act on, and if appropriate consent to the the community body is providing the spark around a home and certain land that serves that application, if (and only if) everything about it but not the vehicle for the acquisition, s 54(5) home is excluded from acquisition. This includes falls into place. SSI 2020/21 makes provision does not restrict the community body in this land used for a resident’s recreation, growing as to the formalities required of a community way. Any body corporate having a written food for domestic consumption, or keeping application (which is to be in a prescribed form), constitution can do the trick, provided it has domestic pets. An access route to the dwelling is the means by which ministers must publicise local accountability and a statement of its aims also excluded, but only where it is owned by the competent applications, and paperwork that is and purposes, including the promotion of a same person as owns the home; this exclusion to go between a potential buyer and the owner benefit for the local community. to the exclusion seems sensible, as a change relating to any application (including provisions of ownership of a burdened property would about when an owner is deemed not to have What land? not affect a servitude of way. As such, it seems responded or is taken as not agreeing to any Another point worth clarifying is the land that strange that there are not similar qualifications request made). can be bought. The starting point is that all land to the exclusions for drainage or storage of is eligible, apart from excluded land (under vehicles, which might equally be covered by a Over to ministers s 46). The two most important exclusions are servitude. (The author raised this point at the A transfer can only be approved where, croft land – already covered by a different relevant Holyrood committee scrutinising the separately, “sustainable development conditions” community right to buy – and land that is an regulations, but no change was made.) and “procedural requirements” are met: s 56(1).

July 2020 \ 35 Briefings

The procedural requirements, set out in s 56(3), are largely matters of fact or steps that track the existing community rights of acquisition, and as such will not be interrogated here. It is worth drawing specific attention to one of these though, namely that an application to buy the land can only be made if a six-month period has elapsed between a written request relating to the land being made directly to the landowner and that request either being rejected or ignored. Of more substantive import are the sustainable development conditions, which is unsurprising given the focus of part 5 itself. Over and above the public interest and sustainable development requirements that are well known from earlier regimes, there are then two further, beefed-up sustainable development criteria. The first such criterion is met where the transfer of land “is likely to result in significant benefit to the relevant local community”, and also that it “is the only practicable, or the most practicable, way of achieving that significant benefit”. There is then a separate criterion to be met, namely that not granting consent to the transfer of land is likely to result in harm to that community. Both those criteria are linked to s 56(12), compensation scheme (and the possibility of might exist, all in terms of regs 7-11. Meanwhile, which requires Scottish ministers to consider the related grants to community bodies for that) in addition to prescribing forms and templates likely effect of granting (or withholding) consent is set out in ss 67 and 68. for correspondence and procedures about some with reference to (a) economic development, The compensation sections are compensation and grants, SSI 2020/21 includes (b) regeneration, (c) public health, (d) social supplemented by regs 19 and 20 of SSI detail around the necessary ballot for local wellbeing, and (e) environmental wellbeing. 2020/21, which set out a procedure for approval of a buyout plus related proformas When making a decision about whether an compensation due to an owner for any losses for publishing the ballot result and notifying application to buy land meets the sustainable or expenses incurred through complying with Scottish ministers of that result. development conditions, s 56(4) provides that the 2016 Act’s steps in general or where the ministers may take into account the extent to process has been aborted by the prospective Real prospects? which, in relation to the relevant community, transferee, and for any grants from Scottish The new right to buy land to further sustainable regard has been had to guidance issued under ministers that might be applied for to cover development landed when much of the world s 44. Such guidance relates to engaging such compensation. How a community or was quite properly distracted by the response communities in decisions about land, and any third party purchaser is to fund the acquisition to the COVID-19 pandemic. It seems fair to landowner who has not engaged sufficiently itself is not provided for in the Act, although imagine anyone reading this note at the time might be caught out by this. Then, in terms of presumably a third party purchaser would of its publication doing so as an intellectual s 56(13), ministers are also required to consider normally only be involved owing to its ability exercise rather than as part of a mature land both equal opportunities and human rights to inject capital, and existing channels such acquisition scheme or in response to an actual beyond the ECHR, including the International as the Scottish Land Fund will be available to instruction from a client. Covenant on Economic, Social and Cultural communities. An appeal can be made to the Be that as it may, Community Land Rights. In short, Scottish ministers will have sheriff about a decision of Scottish ministers Scotland has been particularly active in a lot to think about. (s 69), and valuation appeals can be made to highlighting the strength of the response of the Lands Tribunal (s 70). its community landowner members to the After approval Coming back to the secondary legislation, SSI public health challenges of 2020 (see www. If those requirements and conditions are met 2020/114 has been highlighted several times. It communitylandscotland.org.uk/whats-new/ – which would normally involve a compelling also caters for restrictions on dealings regarding community-coronavirus-responses/). It would application and associated effort from the affected land when an application is pending, so be a brave person to predict the future in the community and/or a distinct lack of interest as to prevent avoidance, and serves to suspend current climate, but it is not beyond the realms from a landowner in terms of responding to any other rights (such as pre-emptions) that of possibility that if and when some kind of the community’s initiative – ministers may normality returns, other communities will be consent to the transfer. Such consent can be spurred into action. Part 5 of the 2016 Act could unconditional or subject to conditions “Ministers are also be part of that, either as an actual means to (s 57). The statutory scheme is naturally force a transfer or encouraging a landowner more complex than can be set out here, but in required to consider to consider a community’s desires rather than summary it is then for the community or third both equal opportunities face the prospect of a forced transfer. Either party purchaser (if relevant) to “secure the way, you will need to know about the new right expeditious exercise of its right to buy” (s 63), and human rights to buy, which provides yet another tool for with valuation provided for by s 65, then a beyond the ECHR” Scotland’s land reform toolbox.

36 / July 2020 Property PSG's help for market guidance the new normal revised Under revised Scottish Government The Property Standardisation Group has devised a set of protocols covering guidance, from 29 June 2020 delivery of documents and submission for registration in the new digital era all home moves are permitted, provided they can be carried out safely, including students moving he restrictions imposed Possession of the wet-signature home and other moves resulting by the COVID-19 lockdown hard copy document in two households merging, and have forced solicitors to Solicitors should bear in mind the requirement custom and self-builders. rethink many of their usual for the applicant's solicitor to certify to Registers Permitted activities now T processes and procedures, that the deed is valid. include visiting estate or letting and with the introduction For many this will mean actually examining the agents, developer sales offices or by Registers of Scotland wet-signed hard copy document. Others will be show homes; property viewing; of the digital submission system for land prepared to accept confirmation from the solicitor preparing a residence and moving registration, solicitors need to address how holding the document that it has been validly in; and visiting a property to to tackle the practical steps for the new signed. Either way, a qualified solicitor needs to undertake activities required for approach to registration. check that the wet-signed hard copy document its rental or sale. In the initial bedding-down period for has been validly signed and witnessed. However, the guidance any new process, solicitors can spend an The protocols cater for both delivery warns that “this is not a return unduly large amount of time in agreeing the situations, acknowledging that delivery can be to normality”. practicalities. Factors that may need to be achieved by electronic means (as a consequence It continues: “Those involved taken into consideration include the ability of of s 4 of the Legal Writings (Counterparts and in the process will have to adapt individuals to print, scan, post or courier and Delivery) (Scotland) Act 2015). practices and procedures to receive documents. ensure that the risk of spread of To address such issues, and provide a Confirmation of signing of COVID-19 is reduced as far as clear set of procedures for dealing wet-signed hard copy possible. This will include doing with delivery of documents and documents more of the process online, such submission for registration, the For electronic delivery of a as virtual viewings and ensuring PSG has formulated a suite pdf of the document, when that you continue to follow advice of protocols for solicitors to sending the pdf a partner on physical distancing, hand agree and use. These are in the sending solicitor's washing and respiratory hygiene. now available on the PSG firm should confirm to the “We encourage everyone website at www.psglegal. receiving solicitor that it involved to be as flexible as co.uk/digital_submission_ has been checked, is in the possible over this period and protocols.php possession or control of the be prepared to delay moves, for As with all of our sending firm, and that it bears example if someone becomes ill documents, we welcome to have been validly signed. with COVID-19 during the moving feedback on these protocols, A signed letter on the firm's headed process or has to self-isolate. It which are likely to evolve over notepaper would be best practice; however, may also become necessary to time, and will adapt to changes giving this confirmation by email from a partner in pause all home moves for a short in the digital system. the firm is as binding on the sending firm. period of time to manage the There are advantages to agreeing spread of the COVID-19. We will and following a protocol: Using the protocols let you know if this has to happen. • parties know what is expected of them: no No solicitor should feel pressurised into “You should also consider last minute arguments about how completion adopting one particular protocol over another. whether you need to make is to proceed, or what one party is, or is not If all solicitors involved in the transaction provisions in contracts to manage prepared to accept; cannot agree on the same protocol, they can these risks. You should not expect • fewer undertakings: signing up to one of either agree a hybrid protocol, or make their to move into any home where the protocols means each solicitor agrees to own specific arrangements. It is strongly people have COVID-19 or are comply with set actions and timescales; recommended that the solicitors agree self-isolating.” • each protocol sets out clear assumptions procedures for how completion and submission on which following the protocol is based, for registration are to be handled at an early Find the guidance, and any including ensuring that documents are validly point in the transaction. updates, under “Housing and signed and that solicitors hold and preserve The suite currently consists of six protocols accommodation” at www.gov.scot/ the originals of the documents, in case they for commercial transactions, with two simpler coronavirus are requisitioned by the Keeper. residential specific styles to follow.

July 2020 \ 37 In practice

Client communication plan is cup winner

A client communications plan and template to help strengthen solicitor- client relationships and minimise complaints was the winning entry for this year’s Innovation Cup. It belonged to Emily Campbell, a trainee solicitor with BTO Solicitors, who wins the £1,500 cash prize provided by Master Policy insurers RSA. Now in its third year, the Innovation Cup is run jointly by the Law Society of Scotland, RSA and brokers Lockton, Society research and judged by a panel comprising two representatives from each. Open to legal professionals and law students, it aims to measures COVID impact inspire new risk management solutions from within the profession. Eight entries he economic impact of the reductions, though this is considerably more were received, with four being shortlisted COVID-19 pandemic right likely with larger practices; to present to the judging panel. across the solicitor profession • partner drawings have been reduced in 60-80% With more solicitors now working has been laid bare by research of firms across the board; remotely, communication is more T carried out by the Law Society • more than half have imposed hours reductions, important than ever. Campbell's idea of Scotland. though this varies considerably with size of firm. involves agreeing with the client a clear Based on a telephone survey of a Firms employing trainees tended to treat them and concise communication plan at representative sample of 158 firms, the Society in the same way as other staff, though some the outset, to strengthen relationships estimates that 35% of employed solicitors in were more likely to furlough their trainees. between solicitors and their clients and private practice – around 1,627 out of 4,650 As for practice sectors, court and chamber avoid the complaints which often result – have been furloughed, along with 41% of non- work were, unsurprisingly, both significantly from the breakdown of that relationship. solicitor staff (4,720 out of 11,500). affected, but the impact on an employment law She said: “Current engagement letters About 90% of firms have experienced reduced practice was much less. often only mention communication in turnover, rising to 100% in the case of large firms, Firms have readily taken up central and local very general terms, but lack any detail with a similar percentage reporting a fall in new government grants offered as support measures, around what the client actually wants. business (here, smaller practices were closer but only a minority have applied for VAT or other This is a great opportunity to agree to the 100% mark) and more than 80% reduced tax deferral or rates relief – many taking the view those expectations from the get-go and cash flow. Late or non-payment by clients was that it was better to meet these liabilities sooner allow for a good and open solicitor-client somewhat less of a problem, though the average rather than later. relationship, minimising the risk for any of below 40% was doubled in the case of the However the impact of business charges can complaints. I’m really looking forward largest firms (30 partners or more). be seen in the responses to the question on rating to seeing my idea developed and made In response: the potential impact of the SLCC levy, with almost available across the profession.” • nearly 60% of firms overall have introduced 70% overall stating that their firm was either The plan and template will now be a recruitment freeze (but 100% of large firms), “concerned” or “extremely concerned” at this. developed by Lockton and RSA into a and 40% a promotion freeze (more common practical application for members in in small firms); The full survey report can be found at private practice. • fewer than 20% have imposed salary bit.ly/LSSCOVIDimpact

38 / July 2020 ACCREDITED SPECIALISTS

Child law DAWN FINLAYSON, MTM Family Law LLP (accredited 20 April 2020); PUBLIC POLICY HIGHLIGHTS LINDA FOWLER, West Lothian Council (accredited 13 May 2020). Discrimination law The Society’s policy committees analyse The Society proposed that following the SARAH ANNE GILZEAN, Morton and respond to proposed changes in the law. UK’s exit from the EU, regulation of fishing in Fraser LLP (accredited 3 June 2020). Key areas are highlighted below. For more Scotland should fall within the ambit of the Re-accredited: GRAHAM STUART information see www.lawscot.org.uk/research- Marine (Scotland) Act 2010 and the Aquaculture MITCHELL, Clyde & Co (Scotland) and-policy/ and Fisheries (Scotland) Acts 2007 and 2013. LLP (accredited 9 March 2015); Leaving the Common Fisheries Policy opens up ROBERT KING, Clyde & Co (Scotland) the opportunity for fisheries to be looked at in Disclosure (Scotland) Bill LLP (accredited 8 April 2015). The Society provided a briefing at stage 3. detail alongside matters such as conservation, Overall, it supports the simplification of the fossil fuel and renewable energy developments, Employment law disclosure process, as the current regime is aquaculture, and navigation. This will help LAURIE GALLACHER ANDERSON, complex and can be difficult to navigate. This ensure that the system of marine planning Ellis Whittam Ltd (accredited will bring greater certainty for individuals and envisaged under the Act is comprehensive, 20 April 2020); KELLY BROWN, organisations engaging with the process, and rather than having components of use of the Addleshaw Goddard LLP allowing electronic processes for the disclosure sea treated separately. (accredited 13 May 2020). system, subject to appropriate safeguards Other than in relation to a discard charging Re-accredited: ANTHONY MICHAEL around sensitive personal information, will make scheme, the bill does not provide for any appeal McGRADE, McGrade & Co Ltd the process quicker and more effective. or dispute resolution processes, for example in (accredited 19 April 2010). The introduction of principles at stage 2 of the relation to the granting of licences. The Society Environmental law bill will also provide a greater degree of certainty considers such provision should be made, even Re-accredited: LAURA LOUISE around the decision-making involved, though the on an enabling basis, to bring clarity to the TAINSH, Davidson Chalmers Stewart Society remains concerned that the information powers of the Secretary of State and devolved LLP (accredited 8 April 2015). provided as a result of this legislation may be administrations in this regard. Family law more limited than that available previously to it ANNA CLAIRE MAITLES, Morton in discharging its functions. However, it looks to Animals and Wildlife Bill Fraser LLP (accredited 27 May engage with Scottish Government and Disclosure The Society prepared a briefing ahead of 2020); FIONA BAIN SHARP, Brodies Scotland to ensure that the code and guidance stage 3 of the Animals and Wildlife (Penalties, LLP (accredited 3 June 2020) available for this process are able to assist in Protections and Powers) (Scotland) Bill. It Re-accredited: SANDRA MARY effective safeguarding of the public. welcomed the bill’s addressing of concerns SUTHERLAND, Thorntons Law LLP around the need for an increase in certain (accredited 22 March 2000); JUDITH Fisheries Bill penalties. The bill also seeks to increase the MAY HIGSON, Scullion Law Ltd The Society produced a briefing ahead of the range of fixed penalty notices in relation (accredited 19 April 2010); KAREN report stage in the House of Lords. It noted to animal and wildlife crimes and offences. SANDRA WYLIE, Morton Fraser LLP that fishing opportunities are a particularly However, increasing sentencing powers will not (accredited 8 April 2015). important issue for Scotland, and therefore on their own ensure that the bill is effective in Family mediation strong collaboration between Defra and the combatting the commission of such offences. RICHARD BRYAN SMITH, Brodies devolved administrations is of considerable Vicarious liability tends not to form part of LLP (accredited 3 June 2020). importance. It welcomed the recognition by criminal law, and if it is to apply here, where an Defra of the importance of engaging with the employee commits an offence in the course of Immigration law devolved administrations and legislatures, and their employment, the employer could be held GRACE MARGARET McGILL, G M the collaborative approach taken by the bill. criminally liable, unless a due diligence defence McGill & Co Ltd (accredited 2 April It is of crucial importance that Scotland’s applies. That would create new offences, which 2020); JOHN VASSILIOU, G M McGill fishing interests are protected, particularly in was understood not to form part of this bill. & Co Ltd (accredited 2 April 2020). recognising that positive changes to the UK Re-accredited: DAMIR DUHERIC, fisheries position are likely to impact adversely The Policy team can be contacted on any of the D Duheric & Co Solicitors the European fishing fleet and/or impact on trade matters above at [email protected] (accredited 23 April 2010). negotiations, including tariffs. Twitter: @Lawscot Insolvency law GORDON CRAIG HOLLERIN, Harper Macleod LLP (accredited 27 May 2020). Intellectual property JAMIE DOUGLAS SINCLAIR WATT, SLCC seeks survey help Harper Macleod LLP (accredited 13 May 2020). The Scottish Legal Complaints causes of complaints, and to short questions of the survey Commission is appealing help firms in dealing well with we have set up. This will give Over 500 solicitors are accredited to solicitors to complete a any complaints they might us a better understanding of as specialists across 31 diverse brief survey as it updates its receive. how we can help you and serve legal areas. If you are interested guidance to legal practices on Director of public policy your needs.” in developing your career as an dealing with complaints at first Vicky Crichton said: “We accredited specialist, see www. instance. would really appreciate a few Find the survey at lawscot.org.uk/specialisms to find The SLCC’s role includes minutes of your time giving www.surveymonkey.co.uk/r/ out more. helping to reduce the common anonymous input into the nine SLCCHelpSurvey

July 2020 \ 39 In practice

SLAS holds first virtual AGM John Stirling of Hamilton and David MacLennan of Edinburgh have been elected President and Vice President respectively of the Scottish Law Agents Society. SLAS's AGM was the first in its 137 year history to be held remotely, using Zoom video conferencing. The Jury trial alternatives principal motion passed, by over 90% of those present, was one calling on the SLAS must be found: Carloway council to state that it had no confidence in the budget of Alternatives must be found to the current form of jury to offering practical answers to what are real difficulties. the Scottish Legal Complaints trial if any reduction is to be made in the backlog of They are simply tinkering at the margins of a major Commission, or that the outstanding cases, the Lord President has warned. problem which, as long as social distancing and self- SLCC had complied with its In a statement headed “The Future of the Scottish isolation are in place, requires a political solution.” statutory obligations in the Courts and Tribunals”, posted to www.scotland- He would not contemplate any measure which might preparation of that budget. judiciary.org.uk, Lord Carloway praised the progress compromise the basic principle of a fair trial, but the Andrew Stevenson, made across the court system since the start of the requirements for physical distancing and self-isolation secretary of SLAS, said: coronavirus lockdown in moving to remote hearings, in order to protect public health were “extraordinary “Inflation is currently below but warned: “The task in relation to jury trials is a inhibitors” on the conduct of court business, with jury 1%. Had the SLCC proposed problem of a quite different magnitude.” trials “particularly badly affected”. an annual increase of even Whereas some good progress had been made in He congratulated the courts' Digital Services team 1.5% this motion would reducing the backlog in the civil courts – 152 remote for its excellent work in achieving the change to remote never have had to have been hearings took place in the Court of Session between business so rapidly, and thanked all those who had put before the AGM. As it 21 April and 12 June – and summary criminal trials been involved in the emergency response, “whether is, the profession is facing “will return in some volume over time”, an immense by keeping the courts and tribunals in operation or an increase of 3.5% in the challenge faced the courts in dealing with the backlog by building the technological infrastructure that is general levy. On top of that, of solemn cases. changing our procedural landscape on a daily basis”. coronavirus is a game- The need to use two or three courtrooms for each Amanda Millar, President of the Law Society of changer, threatening the trial would reduce capacity to 30%, and Lord Carloway Scotland, responded: "Of course there is more work viability of many legal firms. predicted that the combined backlog of cases could to be done, and there will need to be adequate This factor appears completely reach 3,000 by March 2021. resources and training to continue to deal with the to have escaped the notice of “We need to stop thinking about tinkering at the backlog of cases from the early days of lockdown. the Commission. The motion edges,” he continued. “I have no doubt that primary However, we would reiterate that we don’t believe as passed by SLAS is a legislation will be required to address some of the that this is the time to make fundamental changes to measured and specific answer technical constraints that apply at present. None of the the Scottish criminal justice system, such as instituting to this proposed increase.” measures proposed by others have so far come close judge-only trials.”

Notifications

ENTRANCE CERTIFICATES HAMILTON, Mirren MACKENZIE, Ross Alexander (ii) SLOAN, April BROWN, Sophie ISSUED DURING MAY/JUNE HEGARTY, Alice Catherine McKINLEY, Jenna SMITH, Ruaridh Alexander BUCHAN, Ashleigh 2020 INGLIS, Chris Fairley McKINNON, Katie Ann MacNair ADAMS, Kirsty DUNLOP, Lucy Claire KASEM, Rouzana MILL, Stuart SPOONER, Emily Kate AHMED, Farhan GREGOR, Simon KENNEDY, Laila Margaret MOON, Philip John STEVENSON, Hayley BEATON, Holly IBRAHEEM, Muhammad STEWART, Michael Patrick CAMPBELL, Emily LAWSON, Megan Isabel MORRIS, Anastasia TEVEN, Cara JOHNSTONE, Mark Peter CARTER, Emma Susan LEE ALLEN, Maya Elizabeth MURPHY, Ali Ian THOMSON, Ashley Jayne McKNIGHT, Christopher Thomas CHEYNE, Lewis William McALLISTER, Megan PEARSON, Kate Jane WEBSTER, Kimberley MARTIN, Emma Margaret CRAIG, Megan Sarah Mary McALPINE, Anna PEARSTON, Amy Lauren WRIGHT, Caitlin Elizabeth MILLER, Alison DOHERTY, Erin MACDONALD, Sarah Louise PERRIE, Morgan DONALD, Catherine Margaret McDOUGALL, Robbie Cameron QADIR, Manahil QUEEN, Konrad ENTRANCE CERTIFICATES ROBERTSON, Michael Colin DUFF, Anna Jennifer McGOWAN, Sarah Emily RUSSELL, Emily Cleo ISSUED DURING MAY/JUNE GADDIE, Hannah Janet Patricia McKAY, Liam James Nicholas SALTON, Catriona Morven 2020 RODRÍGUEZ MOLINA, Sylvia HAMILTON, Julia Alexandra MACKENZIE, Ross Alexander (i) SHIRREFFS, Georgia Gail ARCHIBALD, Jamila Ruby Louise WHITE, Morven Elizabeth

40 / July 2020 WORD OF GOLD Listen up Lawyers prize great advocacy, but in the battle to win clients’ hearts, it’s listening, not talking, that gets results, says Stephen Gold

his is anecdotal, not scientific, matter, decide on a course of action, or explore but in conversations with law his or her feelings to some new depth. It is useful firms over the last few weeks, for both speaker and listener.” T from national to niche, We are concerned here with selling, but as corporate to private client, I’ve Katz and Murphy point out, reflective listening is heard a remarkably similar useful in a variety of situations: problem solving, message: we’re not where we’d like to be, but assertion, conflict management and negotiation: things could be a lot worse. pretty much the job description of a solicitor. That said, Pollyannas are in short supply. Here are examples of questions you might Everyone has made tough, necessary decisions ask in a reflective listening conversation: on budgets, projects and headcount, anticipating • “If I understand correctly, your main concern that the recovery may be more pear-shaped is X. Is that right?” than V-shaped. But you can’t slash your way to • “Can I just check this out with you? success. Emerging stronger means winning a Your experience has been Y?” larger slice of a smaller pie. The skill to sell will • “So it’s fair to say you think Z is the core not be optional, a thought that terrifies the many issue here, correct?” reserved, risk-averse perfectionists who inhabit In response, it’s important to avoid being the profession and ironically are often among its declamatory or dogmatic. At this stage, best exponents. discovering their views is more important than They fear the unknown, and this is puzzling. broadcasting your own. An unsolicited, “In my We are all buyers as well as sellers, so we know firm’s opinion, this is what businesses like yours what being on the receiving end feels like. We must do now,” sounds presumptuous and is recoil instinctively from the hard sell, but know always a turn-off. But despite what Katz and a good experience when we see one: being Murphy say about not offering your perspective, dealt with courteously by someone who is keen conversations can’t consist only of you asking to help, wants to understand us and knows questions, or it won’t be long before your what they’re doing. It’s easy to forget that in “Conversations can’t subjects feel like they have been dropped against conversations with clients and prospects where their will into a quiz show. Offering thoughtful, our agenda is to win more work, the first task consist only of you helpful comment which arises naturally in is to not to sell, but establish rapport. Listen to asking questions, or it response to what your subject has said will the great US trial lawyer Clarence Darrow, in demonstrate your expertise and understanding. How to be a Salesman, published in the American won’t be long before your Many professional people recoil at the Mercury in 1925: subjects feel like they thought of having sales conversations. It sounds “The farmer, it appears, must not be demeaning, and antithetical to their status. But they approached too abruptly. If you are to get his have been dropped should feel comfortable with this listen/reflect/ money you must break the news to him gently. against their will into respond process, in which they showcase their You should first talk about horses, soil, and expertise and demonstrate insight, and which is market conditions. This conversation will show a quiz show” not a million miles from the advisory conversations that you are interested in things close to him they have daily, albeit with a different agenda. and likewise give you a chance to study his In a time of heightened anxiety, clients’ desire to temperament and to learn his likes and dislikes.” be listened to, understood and helped is likewise The enemy of rapport is talking at the and feelings of another and understanding what heightened. Our being paid for lending a hand expense of listening, an easy mistake – so easy the other is saying from his or her perspective. It begins with skilfully lending an ear. that usually we do not realise we are making is a special type of listening that involves paying it. Craving the business, and full of our own respectful attention to the content and feeling message, we can barely resist the temptation to expressed in another person’s communication. Stephen Gold was the founder and senior partner blurt it out. Here is a better way. It requires responding actively to another while of Golds, a multi-award-winning law firm which keeping your attention focused completely on grew from a sole practice to become a UK leader in Reflective listening the speaker. In reflective listening, you do not its sectors. He is now a consultant, non-exec and “Reflective listening” is not just an expression, it is a offer your perspective, but carefully keep the trusted adviser to leading firms nationwide and skill, and has been defined thus by the behavioural focus on the other’s need or problem. It can help internationally. e: [email protected]; psychologists Neil Katz and Kevin Murphy: the speaker achieve his or her outcomes, help t: 0044 7968 484232; w: www.stephengold.co.uk; “Reflective listening is following the thoughts the speaker clarify his or her thoughts on some twitter: @thewordofgold

June 2020 \ 41 In practice

IT SECURITY

Dr You v The Cyber Men Are the old ways sometimes the best? In light of the continuing grief caused by instances of cyber fraud, Ashley Swanson believes that some things don’t need to be “cyber”

have recently been re-reading High, low or no tech? issued to you by email.” As the terms of business the Ensuring Excellence risk My answer to high tech fraud is low tech, or have to be kept on our IT system and could management booklet issued more to the point, no tech at all. There are be subject to interference, every time a copy by the Law Society of three elements to this: is printed off for issuing to clients the solicitor I Scotland as long ago as May 1. The Royal Mail. should check that the bank details are correct. 1998. It was warning of the 2. The DX Exchange. 2. At the very outset of every file the following dangers of direct bank transfers. Twenty two 3. Legible handwriting. questions should be asked: years later, legal firms are still coming to grief All of these exist completely independently a. Do we need the clients’ bank details? in this respect. I think that the profession is of any solicitor’s IT system, and if the fraudsters b. Do the clients need our bank details? sometimes rather slow to change its methods can hack into any of them, they are welcome to c. Do we need the other solicitor’s bank details? of doing things. try. Incidentally, if I was an internet fraudster d. Does the other solicitor need our bank details? If you are trying to tell someone how to do I would currently be working full time on how to If the answer to any of these questions is their job in a more efficient manner, people can crack an encrypted email. I would be going onto yes, bank details should be issued or requested be very offended by this if they take it the wrong the “dark web” and offering a substantial reward by Royal Mail or DX and not by any electronic way. They can gain the impression that you are to anyone who could show me how to do this. means at all. This should be done right at the trivialising their line of work and that what you These fraudsters have all day long to work start rather than just a day or two prior to any are saying in effect is, “This is such an obvious these things out, while the rest of us are fully settlement date. Clients in particular should thing to do, you must be stupid if you are not occupied trying to make an honest living. be asked to submit bank details in legible already doing it.” Personally, I am always willing handwriting. Your letter of enquiry should to learn by the example of other people. To Bank details – where? contain a stamped addressed envelope for quote the Scottish entertainer Sydney Devine, 1. Our firm’s bank details should be in bold print a reply. Inform the clients that we cannot “I am the biggest thief in the business. I will as paragraph 1 on the very first page of our take bank details by phone or email. You can steal anybody’s material.” terms of business, and the terms of business certainly phone them up to check the details The Society has engaged the services should never be issued by email. Paragraph once you receive their letter, but to cover your of a professional IT company to assist with 1 should begin: “Under no circumstances own position you need something generated by cybersecurity, and I am hesitant about whatsoever will alternative bank details be the client to lodge in the file rather than your suggesting anything on the subject for fear of note of their incoming telephone call. Do not being labelled an armchair strategist, but after scan the incoming letter into your IT system. the eyewatering £900,000 cyber fraud earlier Bank details should not be showing anywhere this year, there is nothing to be lost by making in your IT system. one or two simple suggestions. “The modern technology My employers have conventional paper The modern technology which solicitors which solicitors have is files, and in this respect there is something have is wonderful, but in some cases it is also to be said for being old fashioned. Paperless optional and if there is another safer method wonderful, but in some offices would need to have some additional available for doing certain things, we should cases it is also optional security methods in place to avoid having bank be using it. details showing in incoming correspondence. (As a whimsical thought, maybe the Society and if there is another My suggestion here is that a photocopy of the should actually have engaged the services of safer method available relevant letter is given to the cashier to hold in Dr Who, bearing in mind the Doctor’s 100% a special folder and the bank details are then success record in encounters with these for doing certain things, blanked out of the letter before it is scanned cyber people.) we should be using it” into the system.

42 / July 2020 Pen and paper to the cashier on your computer. Just do not put late Margaret Thatcher said, “Not every problem 3. If it is the case that the fraudsters can alter bank details anywhere near your IT system. can be solved by throwing money at it.” a fax message, then bank details in a faxed If all mention of bank details is removed from Solicitors are supposed to be intelligent and redemption statement for a mortgage are emails, how can the fraudsters ply their trade? clever people. If there are 12,000 solicitors in suspect to say the least. Even if they can hack into emails they will be Scotland, we should be able to make some Ask a trainee or an intern to trawl through all of grabbing at fresh air, because the bank details worthwhile contribution ourselves to tightening up the firm’s house sale files for the past few years will simply not be there in the first place in any security. If anyone has any positive suggestions in looking for redemption statements from lenders, shape or form. this respect, would they care to share them with and prepare a handwritten note to give to the the rest of the profession through cashier of the various lending institutions and The low cost option the pages of the Journal? their bank details. None of this information should What we should be aiming for is a Everyone directly involved in the be put on to the firm’s IT system. It should be situation whereby even if our entire £900,000 cyber fraud will probably kept in handwritten form only. Unless you have a IT system is compromised, even if remember it for the rest of their dishonest staff member, this handwritten record is the fraudster was sitting at a desk lives. In addition to the Society’s incorruptible. If the cashier has to set up a direct in our office with full access to the initiative, the legal profession transfer to repay Andy Pandy’s mortgage, they IT system, they could not find bank should be putting their heads check the bank details on the faxed redemption details anywhere. together to come up with methods Ashley Swanson statement received from the Bank of Toytown These security methods are an is a solicitor in to minimise the risk involved in against the details on the handwritten list and “Aberdeen” type system where the private practice in these matters. The expenditure if everything matches up the transfer can proceed. cost of implementing them is zero. Aberdeen. His required here is of time and 4. Any bank details passing from one part of There would be no consultant’s views are imagination, not money. personal. Other the office to another should be handwritten or fees to pay or expensive program Ladies and gentlemen of readers are typewritten on a good old fashioned typewriter. to purchase to add an extra level of welcome to the Scottish legal profession, Do not send an email or print off a memorandum security to your IT system. As the respond. over to you.

July 2020 \ 43 In practice

DOMESTIC ABUSE Domestic abuse: a CPD insight This Scottish Government article introduces the trauma-informed training animation developed with the Society, dealing with coercive control and its impact

or many victims, and their families, home is not a safe place. This is a F truth that carries additional significance during the current response to the COVID-19 crisis. To raise awareness of the impacts of domestic abuse, an eight-minute training animation has been developed for solicitors, which discusses the benefits of a trauma- informed practice when working with those who have experienced domestic abuse. Funded by the Scottish Government, it covers the key provisions of the Domestic Abuse (Scotland) Act 2018 which came into force in April last year. The Act now makes it easier to prosecute the spectrum of abuse Government is committed to “I hope this animation will issues around child contact and that victims may suffer. It has doing everything we can to tackle encourage solicitors to consider residence, is a valuable addition created a single “course of conduct” domestic abuse, and the underlying the impacts of trauma on their to, and enhancement of, a legal offence, criminalising not only attitudes and inequalities that very clients and the potential impact of professional’s skillset. physical abuse but other forms of often create the conditions for vicarious trauma for themselves, “This CPD animation will support psychological abuse and coercive violence against women and girls and to promote good practice when professionals towards delivering and controlling behaviour. to take place. working with survivors.” the best possible legal advice and Police Scotland data indicate that “This resource is the result of services to vulnerable women there are around 60,000 incidents collaborative working from across Promoting understanding and children who are most in of domestic abuse recorded by the legal sector, academia, NHS, Louise Johnson, legal issues worker need of protection, and it will the police each year. While the and victim support organisations. It at Scottish Women’s Aid, explained: raise awareness of the specialist number of incidents reported has will raise awareness of the range of “Women experiencing domestic domestic abuse services, such as been relatively stable since 2011- coercive and controlling behaviours abuse have repeatedly told us how Scottish Women’s Aid, that can 12, this remains evidence of the that may be experienced by victims important it is to both their own provide valuable assistance for both unacceptable levels of domestic of domestic abuse. safety and wellbeing, and crucially, themselves and their client.” abuse in Scotland. Additionally, the “This animation reinforces that of their children, to have a Katy Mathieson, Scottish Scottish Crime and Justice Survey the Scottish Government’s practitioner who is clear on the Women’s Rights Centre co- (2016-18) suggests that the police commitment to develop a trauma- difference between domestic abuse ordinator, added: “The training came to know about just under one informed workforce in Scotland, and the family law disputes that covers the key points of the new in five of the incidents of partner and highlights the importance they otherwise deal with. domestic abuse legislation, and abuse experienced by respondents of embedding a common “An appreciation and knowledge promotes understanding of the in the year prior to interview. understanding of domestic abuse – of how the power imbalance central impact trauma can have on victims/ both the technical aspects of to the abuse controls and restricts survivors of domestic abuse who Government commitment the law, but also the long term women’s access to justice, and have been subject to coercive and The approach taken in Scotland is impact that domestic abuse can how the abuse impacts directly on controlling behaviours. It also to prevent and eradicate violence have on victims. children, particularly in relation to provides insight into the range of against women and girls wherever considerations a solicitor may have and however that occurs, including when working on civil domestic domestic abuse. That is detailed “It is important to have a practitioner abuse cases. The animation includes in the Equally Safe Strategy, the practical steps which solicitors can joint Scottish Government and who is clear on the difference between take when working with people COSLA strategy. domestic abuse and the family law living with domestic abuse, and it Community Safety Minister demonstrates how trauma informed Ash Denham said: “The Scottish disputes that they otherwise deal with” practice can help to build stronger

44 / July 2020 Child contact: a creative approach cases. Working on domestic abuse Relationships Scotland – Family Mediation Highland has introduced innovative cases may be challenging, and the measures to help maintain child contact in response to COVID-19 animation recognises the possibility of solicitors experiencing vicarious traumatisation, as well as the lthough the Scottish Government importance of looking after yourself is starting to relax social distancing and your colleagues.” measures, many businesses and During the animation a short organisations have had to think segment raises issues around child A creatively about how they can contact, noting that a client may continue to deliver their services. have concerns that her children One such organisation is the Highland branch will not be returned after contact. of Relationships Scotland. As a family law solicitor This issue has become of increasing I have, like many of my colleagues across Scotland, concern over recent months been continuing to work closely with clients to help during the response to COVID-19, them resolve child contact disputes. These disputes and victim support services have have now, as a result of COVID-19, taken on a level reported a range of abusive of complexity in ways we have never seen before. behaviours related to conflict Many clients were using the services of over child contact that are Relationships Scotland – Family Mediation Highland apparently specific to lockdown (RS-FMH), before social distancing measures were (research publication: bit. introduced. All family law solicitors are aware of • Observed video contact: The most recent ly/3i6dhUW). This highlights the important work carried out by their local child addition to this evolving toolbox is the introduction the continued necessity for all contact centres. In March 2020 the RS-FMH office/ of Zoom contact between child and non-resident professionals supporting these contact centre had to close, but it has continued parent. FMH hosts the call, and the contact details families to have an awareness of working remotely, going above and beyond to of both child and parent are kept confidential. Staff the full spectrum of domestic abuse. initiate a means by which its staff can assist clients/ remain on the call throughout and intervene in any service users, and most importantly children, as situation they decide is inappropriate, unsafe or CPD opportunity best it can in line with Government guidance. Here potentially distressing for parent or child. Amanda Millar, President of the are some examples of what it has introduced: These additional services have been welcomed Law Society of Scotland, said: “We • Direct contact from staff: Staff compiled a list by family law solicitors across the Highlands. have been delighted to be part of of service users – those in greatest need of ongoing Service users have, similarly, provided very positive this project. Watching the video support – that a family support worker would call feedback to FMH and it is highly likely that some, will provide solicitors with a useful on a regular basis simply to “check in”. if not all, of these services will continue to form part introduction in understanding the • Advice for safe and successful contact: The of the offering of FMH moving forward. impact trauma can have on clients. service found that some families were able to Margret MacRae, RS-FMH service manager, said: It is a highly complex area of organise their own arrangements to agree some “I think we can all relate to how hard it has been work, and while a short animation kind of contact during lockdown. Staff assisted, not being able to see our families during lockdown. can only touch on some of the where requested, by offering advice on how to Whilst most parents wished for children to maintain most important issues, it provides manage boundaries, and ideas for how to make a relationship with their other parent, the additional valuable insight for our members. video calls fun and engaging for young children. challenges and anxiety resulting from COVID-19 Any solicitors who are interested • Digital post box: Where direct communication have made this even more difficult for some parents in developing their knowledge between parents was not possible the to arrange by themselves. Both resident and skills can engage in further service offered the use of its innovative and non-resident parents have shared training which has been developed “Digital post box”. This has enabled how much the contact provided by these specifically for legal practitioners by staff to continue to facilitate indirect new services has meant to them and our project partners.” contact between parents and children their children.” Watching the new video, in the form of regular updates by video, On behalf of all of my solicitor completing the supplementary photo and email. Resident parents send colleagues across Highland, and reading and passing a test allows videos and photos of their children Sarah A Lilley, the many clients and children who solicitors to claim one hour of CPD. together with written or verbal updates. senior associate at are benefitting from the efforts of The animation, readings and test Non-resident parents can, in turn, send Brodies LLP and Relationships Scotland – Family are available on the Society’s videos, photos and messages to the accredited child Mediation Highland, I want to express law specialist, website at www.lawscot.org.uk/ other parent for them to share with the with Margret gratitude to Margret and all of her team members/cpd-training/trauma- child. Importantly, all content is screened MacRae, RS-FMH for their incredible work during these informed-training/ by staff before being passed on. service manager challenging times.

July 2020 \ 45 In practice

RISK MANAGEMENT Set off on the right foot In a follow-up to last month’s article on homeworking risks, Anne Kentish and Graeme Milloy share their views on client and transaction vetting and related risk issues that should be considered by law firms, as COVID-19 continues to affect working practices

lient and of the lockdown. Clients now face Instructions in the age it really is more important now than transaction unprecedented challenges, and they of virtual meetings ever before to keep notes. And keep vetting are will be more reliant than ever on help The fundamentals of dealing with file notes safe – they are of no use if activities which and advice from the profession. The new business have not changed they have been lost or destroyed. C have always natural temptation is to seize every – take careful initial instructions Another point to bear in mind been a opportunity and accept all client from the client. What has changed, is that remote meetings can pose required and instructions that come your way. of course, is the ability to carry out headaches from a data protection necessary part of a solicitor’s job However much new business this process face-to-face. Current standpoint. Virtual platforms, while when taking on a new client, but seems attractive, a realistic restrictions essentially rule out user friendly, may come with never more so than in the current assessment should always be physical meetings, and even as security issues. Ensure that the environment. made before accepting it – are you restrictions are eased it seems likely client is informed of any risks to The COVID-19 crisis has equipped to accept the instructions that there will be a shift away from the security of their data arising already caused unprecedented in question? Do you have sufficient face-to-face interaction. from the choice of platform. You upheaval to “business as usual”, knowledge of the practice area, Instructions have always been might personally prefer to hold a with fundamental changes almost and does your firm have sufficient taken over the phone and by email, remote meeting to approximate certainly on the horizon. resources to carry out the required of course, and remote meetings can a face-to-face discussion, but As lockdown restrictions are work adequately? The last point now approximate a physical meeting. security concerns may need to gradually eased and we all start is particularly relevant, given that Sometimes, however, none of these override your preference. Consider thinking about how to restart this point particularly if the business and recover from the client’s instructions may relate financial hit, it is important that the to commercially or personally profession thinks about what can be “It is important that the profession sensitive matters. done to minimise risk when seeking thinks about what can be done to to take on new work in what is now Don’t forget the humble a radically altered landscape. minimise risk when seeking new work letter of engagement The Law Society of Scotland in a radically altered landscape” Letters of engagement can be provides helpful COVID-19 guidance, powerful tools, especially so for including advice on how solicitors new clients, and yet too often should approach the process of fee earners and support staff may can get to the nub of the issue quite solicitors seem to resist properly verifying and vetting new clients. not currently be working and may like a physical meeting can. scoping their engagement letters That advice is regularly updated return to work in a reduced capacity. The best way to head off to mitigate the risks arising from on the website, and the Society’s If things unfortunately go wrong, any risk that instructions are transactions. If you decide to Professional Practice team is a solicitor’s lack of experience will misinterpreted is to communicate. venture into a new area of practice working remotely and able to deal likely not prove to be an effective As soon as reasonably practicable, or are working with a new client, with any specific questions. In this answer to a complaint or a claim. express clearly in writing what it is doubly important that you are article, we focus on key areas to The standard for negligence makes you understand to be the client’s precise about exactly how far you think about when considering no allowance for the fact that a instructions and have them confirm will go and what you will do or not taking on a new transaction. solicitor was working outside their that you have correctly understood do in relation to the matter. comfort zone. The claims landscape them. Take file notes of your own, Many practitioners will issue Just don’t dabble following the 2007 financial crash detailing what were the instructions to a client a letter of engagement Previously reliable streams of work made clear that an increase in provided – you will doubtless be covering a particular type of work have dried up or seen significant dabbling leads to an upsurge in sick of having this particular point (lease preparation, debt recovery reductions in volume as a result claims against solicitors. repeated to you in these articles, but work), and when future instructions

46 / July 2020 The effects of a global pandemic may have been entirely beyond the contemplation of the original drafter, and the operation of provisions such as force majeure clauses may now be viewed in an entirely new light. Be aware of the potential for a conflict of interest to arise – such risks need to be identified at the outset to avoid problems further down the road.

Once a fraud, always a fraud Fraud is still a major issue in the current climate, and the methods by which fraudsters operate often are unchanged. However, what may have changed are perceptions. Whereas previously an instruction from a new client located hundreds of miles away might have elicited suspicion, it may be less likely to raise an eyebrow where all instructions can now only be received over the phone, remotely or by email. Many solicitors will see the shift away from physical meetings as a good opportunity to seek out new clients who otherwise have to carry out the same type of work that there were specific factors to issues where no copy of the been excluded by geography. Don’t are received no further engagement associated with the proposed principal letter was retained on forget that if something would letters are issued. That is allowed transaction which increased risk, the file and there was therefore no have aroused suspicion before the – practice rule B4 says that you such as jurisdictional or choice of documentary proof that it was sent. lockdown, it almost certainly is don’t need to repeatedly provide law issues which might arise, and Engagement letters will now suspicious now. the information required under they failed to take sufficient care likely be sent out by email. That To illustrate the point, a that rule to a regular client who to reduce that risk through tailored will generate an email trail showing geographically distant party with instructs the same type of work, engagement terms. The result is that every engagement letter was no prior connections to your firm, provided they got that information that there is exposure to potential sent, which may actually be an or your existing clients, being at the time of their first instruction. liability which could potentially improvement on previous record nevertheless desperate to instruct However, always carefully weigh up have been limited or excluded. keeping. But make sure that each you should always ring alarm bells. the nature of each new instruction: In particular, if you are advising on email sent is actually properly The same principle applies is a proposed transaction really of contractual matters, it is desirable stored and not left languishing in regarding the details of proposed such similar character to previous to set out clearly what is the scope someone’s sent email folder, at transactions, even where the ones, or are there any distinguishing of the advice being provided, so that risk of being deleted, lost when IT client is already known. Factors factors which should be specifically there is a limit to the scope of what systems are updated, or simply which were suspicious before covered off in a transaction-specific is your duty to advise the client. forgotten about if that person leaves COVID remain suspicious now, and engagement letter? This will help the client properly the firm or perhaps is furloughed. certain questions should always Consider on exactly what terms to understand what your advice This point is true regarding all be considered before acting: why you should engage to carry out will (and will not) cover, which will emails sent and received; store is the transaction structured in the transactional work where you have manage expectations and in turn them safely! way that it is; is your firm being identified any transaction-specific reduce the likelihood of complaints. asked to receive and transfer funds risk factors. We have seen claims A final point regarding COVID, contracts which appear tangential to the which might have been avoided engagement letters is an and conflict purposes of the transaction; is there if a tailored letter of engagement administrative one. In pre-COVID Firms are now seeing an increased any unexplained or undue sense of which properly defined what the times, many practitioners might demand for advice on how contracts urgency in the background? solicitor was going to do, and what simply have dictated instructions respond to COVID restrictions and they would not be doing, had along the lines of “please prepare the current business environment. been issued rather than a generic and issue to the client the standard Your firm may well have originally This article was co-authored for engagement letter. The solicitors letter of engagement”, and thought drafted the contracts in question Lockton by Anne Kentish and failed at the outset to identify no further about it. That could lead for the client. Graeme Milloy of Clyde & Co

July 2020 \ 47 APPRECIATION James Haldane Tait 8 January 1931-9 April 2020

ames Haldane Margaret to Egypt and Turin, and Tait died lectures at the Egypt Exploration peacefully at Society in London. His love of home on 9 Egyptology became an absorbing J April 2020, passion and one which gave him from causes enormous pleasure. unrelated to I first met Haldane in 1975, coronavirus. He was a remarkable when I was devilling to Alastair man who has left the world McGregor. I remember him coming immensely enriched by his time to Parliament House, immaculate upon it, and is remembered with in his blacks and wearing a bowler love and affection by all those hat, but the very last thing he was, whose lives he touched, whether was stuffy. Rather, he was bright, in law, in the church, in scouting, lively, sharp, entertaining, above in horticulture, in the apparently all filled with kindness. He always esoteric world of Egyptology, acted with integrity. He was true or in any of the other areas of to his essential nature, and, in that, human endeavour in which he served as an example to us all. took a keen interest. One of his former colleagues Born in Leith on 8 January 1931, said of him that he was “friendly, Haldane attended school at George amusing, widely respected with Heriot’s where his love of language a wonderful sense of humour, and skill in debating was manifest. entertaining, great company and a It was during National Service good friend. He showed kindness from 1952 to 1954 that he became and exceptional concern for the involved with West Hartlepool wellbeing of others. Working with Scouts, leading on his return to Haldane you learned so much”. Edinburgh to his becoming group He was also a man of quiet, leader of the 7th Leith Scouts, and undemonstrative, but deeply held eventually receiving the prestigious faith, and an elder of Palmerston Award of the Silver Wolf. Even Place Church. Perhaps, if you were now there are those who have not to sum up all of Haldane’s qualities forgotten when he turned a training in a single phrase, you could not ship in Leith Docks into a pirate Edinburgh Sheriff Court. He was life partner with whom to develop better what Douglas Irvine, one vessel, with himself as the pirate an enthusiastic Council member numerous interests, contribute to of his apprentices at G W Tait & captain and the boys as his crew, of the SSC Society from 1967, and the community and serve others. Sons and now a minister in the knotting ropes, walking the plank its librarian from 1985 to 1990. Together they formed a great Church of Scotland, has said of and eating (they were convinced) He was also a Council member of team, sharing a sharp intellect, him: “J Haldane Tait was a true weevily biscuits! the Law Society of Scotland and a pawky sense of humour and, Christian gentleman.” On graduating BL from Edinburgh convener of the Legal Aid Central at root, a deep understanding of Haldane achieved much in so University in 1952, he served his Committee, and is remembered human nature. They were made for many areas of human endeavour, apprenticeship with Shepherd & as a hardworking editor of the each other. They had two children, influenced so many people and has Wedderburn and Gray Millar & Society’s Journal. Margaret Anne, and Colin, who left a legacy of lives made better Carmichael SSC, before joining the In 1991, he left private practice sadly died in 2000 after a kidney by his touching them, whether it family firm of G W Tait & Sons SSC. to take on the challenging role of operation, and three grandchildren. be the young wolf cubs from the On the death of the senior partners, Auditor of the Court of Session, Following retiral as Auditor in tenements of Leith whose eyes his uncles, he carried on the family earning the respect of his colleagues 1998, Haldane was able to devote he opened to the natural world, business in a new partnership with for his fairness and courtesy. more time to his private passions, or the young lawyers who were George Tait and David Johnston In his private life, he was a including horticulture and ancient inspired to follow his example until 1985, when he moved to much-loved husband and father. history. After studying archaeology of integrity and service. In those Kilgour McNeill & Sime, and then His marriage to Margaret McLeod at Edinburgh University came the whom he influenced, you see, Robson MacLean. He became a in 1968 brought him great joys of deciphering hieroglyphs and now, his enduring legacy. temporary sheriff and served from happiness and joy, lasting until studying ancient stelae at Glasgow 1987 to 1991 as Joint Auditor of his death. In Margaret, he found a University, memorable visits with Iain G Mitchell QC

48 / July 2020 ASK ASH Demands on a lockdown working mother I’m getting worn down trying to juggle all my commitments

Dear Ash, space in your home where you I am still finding it difficult to can close the door and focus for adjust to working from home full at least a couple of hours whilst time as well as home-schooling the kids watch a film or play in my children and attending to the the garden. For smaller children housework. Prior to the COVID-19 I appreciate this is not always pandemic I was able to escape possible, but see if your partner to the office and focus purely can assist with the childcare to on my work, and I am finding it allow you to at least have a couple difficult to concentrate with the of hours of breathing space. various distractions at home. I Another important part of have little support as my husband your wellbeing is to get a good still attends work during the day, night’s sleep. I appreciate that the so I am the one primarily juggling pressures of work can often disturb childcare with work commitments. alone! However, for your own sake hours to work around the sleeping patterns, so try to set out a I normally have my mum to you need to take steps to address childcare you need to provide. daily to do list for work and for your help with childcare, but she is the issue. First, find out from your Most employers are happy to home, and to tick off at least two or self-isolating due to her health employer if there is any flexibility be more accommodating in the three tasks each day. This will give conditions. I’m getting tired and in regard to your working hours: current circumstances, especially you a sense of achievement, rather frustrated due to the demands for example, consider starting if it improves productivity and than make you feel dread at what on my time and am consequently work earlier when the children employee engagement in the you have still to do. unable to concentrate on work may be sleeping or otherwise long term. You also need some time properly, which my manager engaged, or later than normal Also try to find a pocket of to yourself to relax in order to recently commented on too. recharge your batteries for the next day, so after the kids are Ash replies: Send your queries to Ash in bed and the laptop is closed, It has been tough adjusting “Ash” is a solicitor who is willing to answer work-related queries from find time to treat yourself: a few to lockdown conditions; and solicitors and other legal professionals, which can be put to her via candles, a warm bath, a chat with according to the Institute for the editor: [email protected]. Confidence will be friends by phone or even just Fiscal Studies and UCL Institute respected and any advice published will be anonymised. a cuppa in front of the telly – of Education, mothers have Please note that letters to Ash are not received at the Law Society anything that helps, as it is clearly found it much more challenging of Scotland. The Society offers a support service for trainees through well deserved! Restrictions should to carry out uninterrupted paid its Education, Training & Qualifications team. Email legaleduc@lawscot. hopefully ease and this should work during lockdown compared org.uk or phone 0131 226 7411 (select option 3). help to restore some balance back to fathers. You are therefore not to our lives. Take care.

FROM THE ARCHIVES 50 years ago 25 years ago From “The Lawyer in 2050”, July 1970: “And last but not least: the From “The purported ministerial revocation of the Criminal Injuries further application of techniques will reduce to a large extent Compensation Scheme”, June 1995: “The House of Lords’ decision in interpersonal contact. Procedures, during which clients hardly see R v Secretary of State for the Home Department, ex parte Fire Brigades their lawyer or do not meet him at all, will create the necessity Union... [highlights] issues of major constitutional importance and for the lawyer to have an eye to the importance of inter-human focuses attention on the wider question as to the proper degree of relations in a technically perfect but inhuman society. Most judicial restraint to be exercised where allegations of abuse of power probably the greatest problem for the work of the future lawyer by the executive are encountered... the subservience of the executive will be: to keep on finding time and opportunity for the man-to-man to Parliament is reasserted, as is the illegality of invoking prerogative contact which is so essential in his job.” powers to override the clearly expressed will of Parliament.”

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50 / July 2020