Sorting out contracts: Remote summary courts: Licensed premises: resolution post-COVID what we might lose a route out of lockdown? P.16 P.20 P.24

Journal of the of Volume 65 Number 6 – June 2020

Patchwork remedy Scotland’s Hate Crime Bill: less a risk to free speech, more a recipe for uncertainty. Our authors’ critique

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/ EH3 8EX t: 0131 226 7411 f: 0131 225 2934 Follow > twitter.com/jlsed e: [email protected]

President: Amanda Millar Vice President: Ken Dalling The onus on Government Chief Executive: Lorna Jack The first requirement for a society to live over the transfers of hospital patients to Online resources by the rule of law is respect for the law. care homes, for example, and the attempts www.lawscot.org.uk Such respect was maintained pretty well to conceal what was known at an early www.journalonline.co.uk over the first two months-plus of the stage of the crisis, undermine rather than www.lawscotjobs.co.uk COVID-19 lockdown, as people by and inspire confidence. Subscriptions large stayed at home, observed social We are a long way, then, from realising Practising Certificate (inclusive cost) £680; distancing and the rest. the approach advocated by the Scottish Non-Practising Members (UK and Overseas, Then we had the Dominic Cummings Human Rights Commission in its papers inclusive cost) £315; Annual subscription UK £84; affair. The Government’s insistence on on laying the foundations for economic Overseas £108; Trainees Free defending the indefensible was only ever recovery, which could equally be applied Editorial going to have one outcome – an “If he can in other contexts. “In the context of Connect Publications (Scotland) Ltd do it, so can I” attitude which, combined COVID-19, human rights standards and Editor: Peter Nicholson: 0131 561 0028 with modest official relaxations of the rules principles provide a means of taking e: [email protected] (done with little sign of coherent transparent, accountable and Advertising: Elliot Whitehead: 0131 561 0021 planning) and some fine weather, participative decisions that require e: [email protected] has meant that so far as many the balancing of competing Review editor: David J Dickson people are concerned, the interests and priorities, at a Online legal news: rules might as well no longer time when trust and public e: [email protected] be there. So much for the confidence is both fragile Other Connect Publications contacts, Government trusting in “the and critical,” it states. “With telephone 0141 560 plus: common sense of the British the wide and meaningful Head of design: James Cargill (3030) people”. And the anguish of NHS participation of rights-holders, [email protected] and care workers expecting a fresh the Government would explore Editorial board wave of infection, and of those who still the necessary law, policy and budgetary Austin Lafferty, Lafferty Law need to self-isolate, goes largely unheard. resources required to improve rights Andrew Todd, Springfield Properties Plc Even in Scotland, with the partial shield realisation gradually, and in accordance Philip Hannay, Cloch of the ’s cautious with Scotland’s fiscal envelope.” David Bryson, Baillie Gifford Ayla Iridag, Clyde & Co approach to easing the restrictions, Devolution provides the opportunity Kate Gillies, LLP observance is slipping away. People to do things differently. That involves a cannot be blamed for feeling it has all gone measure of boldness and strategic thinking on for long enough, and if those at the top that is particularly needed at this time. That fail to give a clear steer, part of which must in turn needs the public to buy in to the be being seen to lead by example, controls chosen path, which they will do the more are bound to unravel. readily if they feel they have been given Disclaimer Nor do we have that transparency in the chance to help lay it. If Westminster is The views expressed in the Journal of the Law Society of Scotland are those of invited contributors Government (in either capital) which might failing to command respect, can Edinburgh and not necessarily those of the Law Society of help to encourage trust. The defensiveness show the necessary initiative? 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 Dr Piotr Malcolm Seonaid Clare Frances ISSN: 0458-8711 Godzisz Gunnyeon Stevenson- Russell Ennis Total Net Circulation: 13,689 Birmingham partner, and is a criminal is head of (issue specific May 19) McCabe City University, Fiona Caldow, is a defence Litigation & Av. Net Circulation: 13,628 (Jul 18 - Jun 19) co-author with practice and lecturer in solicitor in Regulation, Professor Mark development law at Glasgow Inverness Bellwether Walters, Sussex lawyer, Caledonian Green University University

June 2020 \ 3 THE JOURNAL OF THE LAW SOCIETY OF SCOTLAND VOL.65 NO.6 – JUNE 2020

Perspectives Features Briefings In practice

04 Journal online 12 28 Criminal court 38 Professional news Our web-only articles for June Scotland’s Hate Crime Bill Roundup, mainly on recent Office bearers; Council election; strikes a careful balance, but sex offence decisions Regulation head; policy work; 05 Guest view risks causing uncertainty gender equality; risk check Neil Hay 30 Corporate Vicarious liability: 40 AGM report 06 Letters 16 the Supreme Court rules Experience of the first virtual SLAS on SLCC; Reviews Contracts have been severely meeting, and what was said disrupted by COVID-19, but 31 Intellectual property 07 Offbeat how should the law respond? Non-use of trade marks: CJEU 41 Mental health Quirky news; Profile column Survey of attitudes leads 32 Agriculture 08 President 18 to Society action plan TFC review; COVID Act Challenge and responsibilities Why the legislative response 42 Trainee round tables to COVID-19 must be based 33 Sport Furlough concerns, and advice Regulars on human rights principles Drug testing during lockdown 44 Criminal traineeships 34 Property 20 How to seek that rare bird What future for commercial 10 People A criminal lawyer’s concerns leases in the retail sector? 45 Ask Ash 31 Consultations over new working practices Feeling invisible during lockdown 37 Archive 36 In-house 39 Notifications 24 Risk management and COVID-19 46 Risk management 50 Classified What can the licensed trade Issues from working at home 51 Recruitment hope for as lockdown lifts? 48 The Word of Gold Cultivating clients for growth 26 What the civil justice statistics Trainees: 49 Appreciation reveal about PI claims furlough talk, and Liz Wilson, solicitor criminal openings: and all-rounder Pages 42, 44

ONLINE INSIGHT

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

So you want to COVID-19: the COVID-19: the road Legal mediation: Scottish IP court Tradecraft: a work from home... equality response for administrative time to start reform: not so miscellany Graham Fordyce Concerned that justice talking! bananas Ashley Swanson has commends the COVID-19 and the Access to With court business Bill Gates said IP collected another experience of responses to it may justice, including still at a low ebb, has the shelf life series of “tradecraft” working from home, exacerbate existing administrative justice, there has never of a banana, but matters of etiquette, but believes that inequalities across is being severely been a better it is a huge part including some attitudes to new all areas of life, the tested by COVID-19, time to consider of the Scottish suggestions on how ways of working Equality & Human and with higher mediation, and a economy, and Colin to allow for the need to change Rights Commission demand for benefits, new collaboration is Hulme believes vagaries of client across the profession explains how it will a more holistic offering online CPD improvements could behaviour. for the benefits to be work to support approach is needed, mediation training. usefully be made to fully realised. disadvantaged Richard Henderson the relevant litigation groups. argues. rules.

4 / June 2020 OPINION Neil Hay While most public concern in the criminal sphere arising from COVID-19 has focused on preserving and restarting jury trials, the great majority of trials are summary and this business deserves priority

any hours of debate, hundreds of column inches accused to live away from the family home, with the additional and thousands of tweets have been devoted to strain on family relationships (especially children) and the financial defending the traditional jury trial from burden of maintaining a second home. M precipitate Government legislation in reaction to The COVID-19 national emergency presented an incredible the COVID-19 crisis. I joined others in decrying challenge for SCTS, and the response was immediate and hasty proposals by the Scottish Government for responsible. The public will expect the speed of the recovery to judge-only trials in the High Court; a jury is surely a hallmark of match that of the lockdown. However, as at 1 June, although some civilisation and a pillar of a democratic society. local courts are reopening in June, there is no sign of any clear By the end of May, it appeared that most publicity and political strategy from SCTS to clear the backlog. A well-planned strategy concern about the serious backlog of criminal trials was focused might include increasing the on jury cases, particularly those in the High Court. But what of number of courts to hear summary the humble summary trial which takes place only before a cases or leasing temporary and without a jury? What has been the effect of coronavirus on accommodation, employing part- summary cases, and what action will be taken to recommence time sheriffs more regularly and summary trials? appointing new summary sheriffs Since lockdown at the end of March, criminal courts have to hear trials. Such action would simply stopped hearing all trials (except for a very small number also have consequences for COPFS where the accused is in prison awaiting trial). Using emergency and the defence bar. powers granted to the Government in April, the vast majority of When the time is right, the trials have been compulsorily adjourned until August or later. resumption of summary trials Scottish Courts & Tribunals Service (SCTS) statistics show quickly and safely is distinctly that the highest volume of all business (civil and criminal) in all possible. Jury trials require the courts is summary crime. In 2019-20, evidence was led in about participation of more than 20 10,000 summary trials (sheriff and JP court); jury trials amounted individuals (jury, court staff and to about 1,600. Speaking to the Scottish Parliament Justice lawyers) and will now be spread Committee on 19 May, Eric McQueen, the CEO of SCTS, stated across two or three courts to that the COVID-19 crisis had created a backlog of almost 1,800 ensure social distancing. Summary trials in Scotland, with the possibility of this rising to 3,000 by trials require only one court and usually proceed with only six early next year. people present at any one time: the accused; the defence lawyer; The time period from the start of a summary prosecution to the prosecutor; the court officer; the sheriff; and a witness (and the date of the trial is usually between two and four months. the sheriff clerk for key trial events). Summary courtrooms and That period is also growing, has increased to more than six months adjoining witness waiting rooms can easily accommodate a safe and may well grow to almost a year. Given that 85% of all trials (and socially distanced) trial. Furthermore, the backlog of summary in Scotland are summary trials, the scale of the backlog is simply trials can be cleared quickly. While each jury trial usually takes a enormous. This issue is not limited to Scotland. The Criminal Bar minimum of two or three days, each summary court might hear and Association of England & Wales suggests that there is a backlog of dispose of two or three trials every day. 40,000 trials in that jurisdiction. It is often said that justice delayed is justice denied. That is why, Most members of the public experience the criminal justice when it is safe to resume criminal court trials, summary cases must system through the summary criminal courts. With a maximum be prioritised. This approach offers an effective way of delivering sentence of 18 months available, much of that court business justice swiftly and safely for the majority of the public anxiously is serious: drug dealing; serious assaults; sexual offences; and awaiting a verdict in criminal cases. domestic crimes. Every case awaiting trial includes an accused person under pressure, a complainer suffering stress and any number of witnesses feeling anxious about giving evidence. In Neil Hay is a solicitor and a director with domestic cases, special conditions of bail usually require the MTM Defence Lawyers

June 2020 \ 5 CORRESPONDENCE BOOK REVIEWS Education, Law and Diversity SLCC’s NEVILLE S HARRIS HART PUBLISHING ISBN: 978-1509906703; £59.50 runaway train Neville Harris is Emeritus Professor of Law at Manchester University, so the legal context he Scottish Law Agents deferment. The SLCC has just not and specific legal provisions are always to the fore, but Society (SLAS) welcomes taken proper account at all of the his fascinating consideration of the question of education, T the agreement between mayhem and threats to business that law and diversity goes so much further. It is as much a the Scottish Legal have engulfed the country. consideration of the place of education in society as it is a Complaints Commission and the Law The problem is that the SLCC is legal textbook, and really repays a cover to cover read. Society of Scotland to defer payment unaccountable to the profession, The breadth and scope of the enquiry immediately of half of this year’s levy, but remains one that pays its entire costs. The strikes the reader, covering all the protected concerned that the SLCC does not Scottish Government does not pay characteristics one might expect, and going well beyond recognise the present crisis in the legal for it and neither do complainers. them to, for example, the rights of transgender pupils, profession caused by the COVID-19 There is something wrong with the even where they do not fall within the Equality Act pandemic. It must now agree to revisit Commission’s plans if it cannot make definition of gender reassignment. its spending plans and come up with a reductions in the levy or maintain the It also covers areas where different interests come substantial reduction. status quo with no increase, especially into conflict, such as tensions between LGBT+ inclusive The SLCC’s attitude can be summed with the furlough on salaries. We education and the religious beliefs of some parents. up in three words: “Crisis? What crisis?” think that a detailed investigation is The text highlights the issues and the legal and policy The budget of the Commission has required into the salaries and costs of contexts in which they arise, without getting mired in grown exponentially, despite an actual SLCC during lockdown. We assume controversies for its own sake. drop in the number of cases from its that the Commission is able to make There are times when the focus on the system in England inception in 2007. It is not sufficient for considerable savings and that it ought makes the coverage less relevant to the Scottish practitioner, SLCC merely to claim that “cases are to be able to finance a significant but these are both relatively rare, and interesting as a more complex”. We suggest that its reduction in the levy. We are requesting comparative exercise. The book is likely to be of most budget is akin to a runaway train. the Scottish Government to look into interest to those involved in education policy, at local or SLAS has previously challenged the this and veto the budget plans. national level, but also to child and family law practitioners SLCC to “get real”, and to acknowledge There is a bigger problem, and that looking for a deeper understanding of this area. that coronavirus is a game-changer. It is the SLCC itself. Despite seeming to The work is as comprehensive as it is ambitious, easy threatens the existence of many legal harbour ambitions to be a regulator, to read despite being in-depth, and well structured and firms, big and small alike. Many more it is meant to be a fair and impartial laid out. A real tour de force! are likely to face a serious downturn complaints service showing favour Iain Nisbet, education law consultant. For a fuller review in business and revenue. Loss of firms to neither complainer nor solicitor see bit.ly/2XAdGa9 will lead to a loss of competition in complained of. the Scottish legal market. The SLCC is As an organisation the SLCC is demonstrating either lack of awareness failing the profession and complainers. The Flat Share or deliberate and reckless conduct. It operates at huge cost with little BETH O’LEARY The Commission’s budget plans scrutiny and is the very worst model QUERCUS: £7.99 were first proposed in January before of a complaints body. It has lost the “The characterisation is lovely, the the pandemic spread. We are now confidence of the legal profession. It is plot has beautiful twists and turns presented with exactly the same unfit for purpose and has had its day. and it’s truly entertaining.” inflated levy but with payment simply This month’s leisure selection deferred in part. The Law Society of Andrew Stevenson, secretary, is at bit.ly/2XAdGa9 Scotland has had to step in to organise Scottish Law Agents’ Society The review editor is David J Dickson

BLOG OF THE MONTH ukconstitutionallaw.org

To whom, if anyone, is the Prime Minister’s but that their respective failings may have special adviser Dominic Cummings fuelled much closer scrutiny of Government. accountable? What constitutional and “Consequently, it may be the case that the behavioural obligations apply to his position? Dominic Cummings affair has, in different Professor Mike Gordon of Liverpool senses, generated both less accountability University concludes that Cummings and more accountability than we might is answerable only to a Prime Minister have expected.” “zealously committed” to keeping him, To find this blog, go to bit.ly/3duv9pH

6 / June 2020 WORLD WIDE WEIRD Yo ho... meh 1 Just when you thought the COVID fallout couldn’t • virtual wine and cheese course: you can get Neighbour principle get any worse, up pops a Scrooge-like press it delivered to your door and look up the virtual bbc.in/3ct6iBt release from Offices.co.uk predicting the demise of tasting notes Residents’ welfare associations in the office Christmas party. • Zoom karaoke: “As if it is not annoying enough, at Indian cities are having to be reined in Sadly, it claims that those who have already least you can put mute on.” for applying arbitrary, “tinpot dictator” booked large work festive gatherings are being Hmm, definitely not much of a substitute. Never rules purportedly to prevent COVID-19 told to forget the idea. We shan’t dwell on what mind, at least you might not have to have the spreading in their neighbourhoods. that would mean for the hospitality sector, aunties round this year. but the resourceful office space company has 2 already drawn up its own list of ideas for “socially Who let it out? distanced” Christmas parties. Like: bbc.in/2XZ7x6a • a videoconferenced festive drink and banter with Keeping wild animals is legal in Mexico colleagues with a permit and proof of ability to • fancy dress conference calls (“yes, this will be a feed and house them, but last month thing this year”) a tiger was seized after it was seen • Secret Santa, if the post manages to deliver wandering the streets of Jalisco, quicker than it did the editor’s birthday cards chased by a man with a lassoo. • microwave Christmas dinner: enjoy a burning hot conference call meal together [it says here] 3 Driven to it reut.rs/2z4Bcmc

PROFILE When police in Utah, USA found a five-year-old at the wheel of his parents’ Lamborghini, Ian Moir the boy said he left home after Ian Moir is a Glasgow solicitor who is joint convener of the arguing with Law Society of Scotland’s Criminal Legal Aid Committee his mother who told him e Why did you become we changed the name to Moir & negotiations as the people she would a solicitor? Sweeney Litigation, to recognise I was dealing with at SLAB not buy him I was either going to study the huge contribution by my and Scottish Government knew one. medicine or law. My dad was partner Paul Sweeney. me well. a doctor and he invented the I have mainly focused on epidural, which I felt was a tough criminal defence work but have u Can you tell us about TECH OF THE MONTH act to follow, so I opted for law! also done FAIs, regulatory work, any personal highlights? children’s panels etc. Making sure we avoided the Be My Eyes r issues around contracting; How has your career iOS, Android – free gone so far? t Why did you join the creation of a user-friendly Be My Eyes I did my traineeship in Cranhill the Criminal Legal Aid system for claiming for police connects visually and Blackhill, which had some Committee? station work; and the recent impaired people with interesting moments! I then After the concessions for COVID-19 to sighted volunteers worked in Possilpark for fee and other cuts, I felt that help legal aid firms survive. In and company a number of years rather than moan from the terms of my own work I would representatives before joining a sidelines I should try to say winning Criminal Law Firm who take video calls bigger firm which did improve the situation. I of the Year 2017 and a judges’ to help them with other areas of work have been involved for commendation for Solicitor of the various tasks that as well. I set up my almost a decade, and Year in 2018 are right up there. require sight. own firm about 10 that really helped www.bemyeyes.com years ago; during the Go to bit.ly/2XAdGa9 last year COVID-19 for the full interview

June 2020 \ 7 PRESIDENT Amanda Millar While many challenges now face the Society as it seeks to continue the profession’s contribution to civil society, I also intend my presidential year to advance the inclusiveness that will help the profession fulfil its responsibilities

... here I am, President of your Law health will also help deliver future sustainability – we are in this Society of Scotland, a profession of over for the long haul. 12,000 members with a responsibility to See p 41 of this issue for the results of our 2019 survey on the promote, protect and advance the legal status of mental health stigma and discrimination in the legal interests of all aspects of society at a time profession, and the launch of a seven-step action plan to drive So of challenge for all and crisis for many... cultural change. no pressure! Friday 29 May, as well as being the day I received the This is the next opportunity of my President’s chain of office (although I left John with the life and I am undaunted in my desire responsibility until 1 June!) was also the 50th anniversary of the to face the many challenges with openness, compassion, and passing of the landmark Equal Pay Act. In the same week, we consideration. The Society will, under my watch, work with the published the results of gender round tables carried out last year, profession and stakeholders to ensure the profession remains an important initiative led by Past President Alison Atack. viable and continues to make a fundamental contribution to civil I commend to you her blog society. That includes protecting fundamental rights, ensuring our about the importance of this profession reflects the society it serves in its diversity, promoting work (under “Blogs & opinions” wellbeing and standing up for and to challenge. in the news and events section I and my colleagues are not complacent about the level of these of the Society’s website). challenges, particularly when it seems other priorities have taken As well as being the start of over life, but a viable, valuable, committed legal profession must my time as President, June is and will survive to ensure the values of our civil society do likewise. Pride month which in recent At the start of the lockdown all areas of legal business were years has launched a summer affected: courts closed; closed; businesses of celebrations of everything closed; emergency legislation produced. The Society through LGBTQ+. This year will be its staff and volunteers engaged with others including SCTS, very different, but our LGBTQ+ Registers, SLAB, Westminster and Scottish Governments, and community is not forgotten, through sharing of expertise and compassionate challenge, we notwithstanding the challenges made and will continue to make positive progress. of lockdown. There is particular This month has seen the start of the financial package delivering symmetry in this timing as, if savings of £2.2 million, by offering members a delay in paying you didn’t know already, the SLCC levy. It is frustrating that the SLCC has maintained what I am the first person known to appears to be a unique position in the crisis, making NO change be a member of the LGBTQ+ community to become President in the to its budget produced in January and evidencing NO consideration Society’s 71-year history. to the challenges facing everyone at the moment. John Mulholland, I look forward to seeing and contributing to its #PrideInside work. my excellent predecessor, described it in April as “tone-deaf”, and Some may say there is a lot here about work on inclusion and its hearing has not improved. we are losing our focus on a core message to defend and promote the profession. To those I say, our profession has a responsibility Support across the board to society and if it does not support its members’ ability to bring Of course all our work is influenced, and much of it driven, by the all their skill, intellect and diverse experience then we cannot fully impact of COVID-19, but the Society’s other work has not been meet that responsibility. forgotten, nor is it being allowed to stagnate. My start as President Our profession with its responsibilities to individuals, business, is also the end of an era, as the Society’s longstanding executive government, justice delivery, society and its members are all in this director of Regulation, Phil Yelland, retired at the end of May. Phil’s together and I, my Vice President Ken Dalling, Past President John wealth of experience and support will be much missed, but I look Mulholland and all the team at the Society led by the capable and forward to working with Rachel Wood, who brings her own insight persistently positive CEO Lorna Jack, look forward to working with and experiences to the role as we move forward. you to lead the way in delivering legal excellence. In Mental Health Awareness week, I launched the Society’s series of events offering training and ideas for individuals and businesses on how to support positive mental wellbeing. This is always important, but is particularly pertinent now as we manage through increased working from homes, personal and financial Amanda Millar is President of the Law Society of Scotland – stress. Investing time and energy now to promote positive mental [email protected] Twitter: @amanda_millar

8 / June 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, PROGENY, a UK professional Edinburgh, Glasgow, Aberdeen and advisory firm with offices in internationally, has announced the Edinburgh and promotion of real estate solicitor elsewhere, Paul Ewing to partner in its has appointed Edinburgh office. Stuart Easton, of EASTONS, BKF (BANNATYNE KIRKWOOD Glasgow, to its FRANCE & CO), Glasgow has business to advise in announced the appointment wills, powers of attorney, trusts, of Alan Eccles to the firm. executries and estate planning. Previously a partner at , he works in three main areas: RAEBURN CHRISTIE CLARK & charities, private client, and Brodies LLP, from top left: Kate McLeish, Karren Smith, Jack Moir, Niall McLean WALLACE LLP, Aberdeen, Ellon, Bottom: Andy Nolan, Jennifer Wilkie, Jared Oyston parliamentary matters. Stonehaven, Inverurie CLYDE & CO, Edinburgh and to senior solicitor, Emma Cowie and Banchory, BRODIES LLP, Edinburgh, globally, has appointed Vikki (Residential Conveyancing) and announce the Glasgow, Aberdeen and Dingwall, Melville as managing partner Fraser Cameron (Litigation & promotion of Amy has appointed for Scotland from 1 May 2020, Dispute Resolution). Watson to partner, Carly Forrest, previously with taking over from David Tait, who and Ruth Lussier BTO, as a partner in its Insurance remains on the firm’s Scottish LINDSAYS, Edinburgh, Glasgow to associate, both in & Risk practice, and made seven executive committee. and Dundee, has appointed the Private Client other solicitors up to partner in a David Rose as a partner in its team, with effect total of 36 promotions across the Jacqueline Fordyce, advocate Commercial Property team. from 1 June 2020. firm: Kate McLeish and Karren has been appointed as the sole He joins from DENTONS. Also Smith (Real Estate), Andy Nolan registrar of the Upper Tribunal appointed are Katherine McAlpine ROONEY NIMMO, (Corporate & Commercial), Jack (Administrative Appeals Chamber) (who joins from MILLER HENDRY) Edinburgh and London, Moir (Banking), Jared Oyston and in Scotland. as a senior solicitor in Dispute has appointed commercial solicitor advocate Niall McLean Resolution & Litigation, and lawyer Neil Anderson as (Litigation), and Jennifer Wilkie GILSON GRAY, Edinburgh, Rhian Griffiths as a solicitor in a partner, based in both offices. (Personal & Family). Ms Smith Glasgow, Dundee and North Commercial Property. He was formerly a partner at will also take on a leading role Berwick, has appointed English- LEDINGHAM CHALMERS. in Brodies’ Dingwall office. qualified commercial property MUNRO & NOBLE, Inverness, There are eight new senior lawyer Mark Sabey as legal Dingwall & Aviemore, TLT LLP, Glasgow, Edinburgh associates: Jenna McCosh and director in its Glasgow Real Estate has promoted Kay and UK wide, has appointed Breda Deeley (Real Estate); Paul division. He was most recently a Bevans Brown dual qualified solicitor Stacey Green (Corporate & Commercial); director with . (Residential Cassidy, who joins from Eoghann Green, Lynn Livesey, Gilson Gray has announced Conveyancing) , as a partner Gemma Nicholson and Ramsay seven promotions: to legal and Laura in its Projects, Infrastructure Hall (Litigation); and Kimberley director, Cheryl Edgar (Residential McCarthy & Construction team, based in Ryder-Forman (Banking); and Conveyancing, based in (Litigation) to Glasgow, and Michael Spence, 21 promotions to associate: East Lothian); to associate, partner, and previously head of Real Estate Dave Bales, Cameron McKay and Jean McAlpine (Residential Chris Allan (Scotland) at WOMBLE BOND Gail Smith (Real Estate); Jennifer Conveyancing), Iain Grant (Executry) and DICKINSON, as a partner in Crawford, Will Rollinson, Harriet (Litigation & Dispute Resolution), James Noone Real Estate, based in Edinburgh. Rutherford, Sarah McConnell Joe Davies (Private Client) and (Litigation) to associate, all and Lucie Hassell (Corporate Shona Young (Family Law); and with effect from 1 April 2020. WOMBLE BOND & Commercial); Ross Mitchell, DICKINSON, Stephanie Clarke, Jamie Dunne, Edinburgh, Lisa Kinroy, Alison McAteer and Aberdeen and Jo Kelbrick (Litigation); Stewart internationally, has Gibson, Rachael Noble and appointed Garry Sturrock (Personal & Chris McLauchlan, Family); and Anna Bell, Katie who joins from Priester, Rachel O’Reilly and EVERSHEDS Claire Devlin (Banking). SUTHERLAND, as a legal director to CAIRNS BROWN, Alexandria and lead its Banking team Dumbarton, has appointed as a in Scotland, and Ewelina partner Kenneth Owen McGowan, Kurek, who joins from SHEPHERD based at its Alexandria office, with & WEDDERBURN, as an associate effect from 1 April. He will oversee Gilson Gray, from top left: Cheryl Edgar, Joe Davies, Shona Young, Jean McAlpine, in its Real Estate team, both based the firm’s criminal practice. Iain Grant, Fraser Cameron, Emma Cowie in Edinburgh.

10 / June 2020 June 2020 \ 11 HATE CRIME

Hate crime: mapping the boundaries Scotland’s Hate Crime Bill seeks to modernise the law, but has reignited debates on freedom of expression and the need for such laws. The authors discuss how it would affect victims in Scotland, and the lessons for other parts of the UK

cotland is looking to currently being undertaken in Northern having a clear set of rules and procedures change its hate crime Ireland and England & Wales. within the criminal justice system to deal laws. The Hate Crime with hate crime”. S and Public Order Impact and statistics The proposed new measures are meant (Scotland) Bill was There were 4,616 hate crime charges to offer greater protection for people submitted in Holyrood recorded in Scotland in 2018-19. More who experience hate crime. According on 23 April. According to the Scottish than half were race-related. There to Justice Secretary Humza Yousaf: “By Government, it “seeks to modernise, were 1,176 charges of sexual orientation creating robust laws for the justice system, consolidate and extend existing hate hate crime, which has been steadily Parliament will send a strong message to crime law ensuring it is fit for the increasing year on year, 529 religiously victims, perpetrators, communities and to 21st century”. aggravated charges, 289 charges with wider society that offences motivated by Its proposed changes include: an aggravation of prejudice relating to prejudice will be treated seriously and will • expanding the list of protected grounds disability, and 40 with an aggravation of not be tolerated.” in the hate crime law by adding bias transgender identity (compared to 52 in based on age and variations in sex 2017-18). Under-reporting of hate crime is Protected grounds characteristics (and possibly also recognised as a key factor. Even without the proposed reforms, sex, depending on the outcome from While relatively low in numbers is already among the most a working group) to those currently when compared with volume crimes like advanced in the world. By providing for protected: disability, race (and related robbery or shoplifting, hate crimes are a higher penalties for offences aggravated characteristics), religion, sexual daily reality for many people belonging to by prejudice based on disability, race orientation and transgender identity; at-risk groups. They are often associated (and related characteristics), religion, • introducing a new offence of stirring with more serious psychological, social sexual orientation and transgender up hatred against any of the protected and community impacts compared with identity (including intersex), the existing groups covered by the bill (currently similar, but non-hate crimes (Iganski and legislation covers most groups known these offences apply only to stirring up Lagou, “Hate Crimes Hurt Some More to experience hate violence. Adding racial hatred); Than Others”, 30 Journal of Interpersonal new protected grounds places Scotland • consolidation, by pulling most current Violence 1696 (2015)). among the handful of jurisdictions in laws into one bill. In his independent review of hate Europe and North America that recognise The last of these should be welcomed crime laws in Scotland, Lord Bracadale “age” and “variations in sex characteristics” by both legal practitioners and victims, outlined three key reasons why the state as protected grounds in hate crime law. but there are important conceptual is justified in legislating to prevent hate For example, 13 USA states recognise bias and practical implications of the bill. crime. These are summarised as: based by age in their hate crime statutes, We argue that, while the bill brings “• recognition of the additional harm while Greece and Malta have legislated to greater simplicity and more parity for which hate crime offending causes to the include sex characteristics. the protected characteristics, there are victim, others who share the protected The bill also improves the parity of possible implications for the effective characteristic and wider society; protected grounds through new “stirring application of the law, and for the concept • the important symbolic message up of hatred” offences, addressing the of “hate crime” itself. There are also which the law can send; hierarchy of victimisation criticised lessons for the law reform processes • the practical benefits which arise from by Lord Bracadale (more on this

12 / June 2020 which risks causing confusion and undermining the aim of collecting reliable data”. The bill does provide for a window to allow the characteristic of “sex” to be added at a later stage; but notwithstanding the implications of misogynistic or gender-hostile crimes being labelled as ill will towards someone’s “sex”, there is the additional concern here that decisions about adding characteristics are not being based on any consistent criteria. Failure to outline clear criteria for inclusion of characteristics in hate crime law could lead to the concept of hate crime becoming too nebulous and, in turn, its potency as a legal category being diminished. The legislature should instead set out general criteria for inclusion of characteristics. Then, using these criteria it can assess whether a characteristic requires legislative protection based on information and evidence provided by statutory agencies and, importantly, civil society groups, community practitioners, and researchers. The Law Commission in England & Wales is currently working to develop a set of criteria for victim group inclusion.

The legal model Scots law does away with the dual system of legislation that England & Wales employ, simplifying the way in which all hate crimes can be prosecuted below). As we will explain, some of Bracadale. The Scottish Government and recorded. It is also different to these amendments will help to clarify noted that: “Although there might only Northern Ireland in that its current existing laws. However, we argue that be a relatively small proportion of legislation (and the new consolidating other changes lack sufficient evidential crimes relating to malice and ill will bill) requires that it is “libelled in an grounding and risk further complicating towards a person because of their age”, indictment, or specified in a complaint, the legal framework. it “wants to ensure that these crimes are that an offence is aggravated by We welcome the bill’s removal of treated in the same way as other hate prejudice”. As well as being stated in the awkward understanding of intersex crimes through the use of the statutory open court, the aggravation, if proved, as a type of transgender identity. aggravation model”. is recorded on conviction in a way that The recognition of variations in sex Yet, while the Government has moved shows the offence is aggravated by characteristics on a par with other to include age, somewhat surprisingly prejudice. protected grounds helps to normalise it has excluded “gender” or “sex” from This is unlike England & Wales, the intersex identity, and removes legal the list of characteristics. Such a move and Northern Ireland, where offences uncertainty and possible confusion ignores Bracadale’s recommendation motivated by (or which demonstrate) among judges. Separation will allow for that gender hostility should be included sexual orientation, disability or (E&W the correct recording of the scale and under the legislation, considering the only) transgender hostility, will not be types of transphobic and interphobic significant body of evidence that women labelled as prejudice-based at trial and crime, enabling better understanding and experience various forms of violence will not be officially recorded by the evidence-based policymaking. based on hostility towards their gender. courts as a prejudice-based offence. The move to include age as a new The Government has taken account Both the review in Northern Ireland and protected characteristic is a more of opposition from women’s rights the Law Commission review in England controversial one, especially as there organisations who argued instead for & Wales should carefully consider the remains scant evidence that there are a standalone offence of “misogynistic value of prosecuting and labelling any prejudice-motivated crimes based on harassment”. Bracadale dismissed this offence as an “aggravated” crime (where age that are likely to cause additional proposal, stating that a “new standalone there is evidence of hostility), in the way harms to victims or others who share offence would… have a considerable that Scots law does (referred to as their characteristic, as set out by cross-over with other existing offences, the “hybrid” approach by Goodall

June 2020 \ 13 HATE CRIME

and Walters, Legislating to Address Hate to be stirred up in society. After all, the Crimes against the LGBT Community in same freedom of expression provisions the Commonwealth, Equality & Justice apply to all forms of speech, and the Alliance (2019)). Previous research (Hate defence that the use of language was Crime and the Legal Process, University of reasonable in the circumstances will Sussex, 2017) has shown that evidence equally apply. of “hostility” is often filtered out of the While critics of the bill have expressed criminal process where it does not concerns that the new law would make up part of the substantive offence criminalise people who objected to being prosecuted. The dual system of Government policies such as the reform substantive offences and sentencing of the Gender Recognition Act, we provision found in England & Wales can see very little reason to believe this also lead to confusion amongst legal would occur in reality. Similar concerns practitioners, with fewer professionals were raised in England & Wales when being aware that the sentencing laws exist. religious and sexual orientation hatred Despite the Scottish bill providing for were added to the law in 2006 and much needed simplicity in the law, it 2008 respectively. Yet few cases have has conversely chosen to maintain the ever been successfully prosecuted, somewhat archaic criminal law language due primarily to the law’s emphasis on of “ill will and malice”, clearly dismissing freedom of expression. Considering the Bracadale’s assertion that “to a layperson can be proved where it is committed “by careful phrasing of the proposed law a phrase such as ‘demonstrating hostility’ reason” of someone’s characteristics (including the requirement of threatening is more easily understood than ‘evincing was rejected, as Bracadale had concerns and abusive language), and the fact that malice and ill will’”. In some respects that this would be too broad. We argue such provisions used across Europe have this may be a good move. The University however that this is a missed opportunity been found to be lawful under human of Sussex study found considerable to ensure that all types of hate crime, rights treaties (European Court of Human problems with the application of especially age and disability aggravated Rights, Factsheet – Hate speech (March “hostility” based offences in England & crimes, can be effectively proved in court. 2020)), we share the Government’s view Wales, leading to many disablist offences that the bill “strikes the right balance, falling outside the scope of the legislation. “Stirring up hatred” offences protecting those who fall victim to crime However, the legal test of proving “ill will The “stirring up” offences, too, have because of the prejudice of others while or malice” may prove equally inhibitive been criticised for being hierarchical, also protecting the freedom of thought in successfully pursuing any age-based both in terms of what characteristics and expression of all citizens”. hate crimes. are covered and the legal tests used to Bracadale notes that most cases of prove different types of hatred. Summary: unclear boundaries victimisation of older people involve Currently, only stirring up of racial Policymakers in Northern Ireland, and the targeting of victims based on their hatred can be prosecuted as a specific England & Wales, will no doubt be perceived vulnerability. Cases involving offence in Scotland (religious hatred paying close attention to the approach actual hatred or hostility will be few. Yet, having been repealed under the Offensive taken in Scotland. The reformed law as we have seen in relation to disability Behaviour at Football and Threatening may also be relevant for Ireland, where hate crime cases, it will be very difficult Communications (Repeal) (Scotland) Act the Department of Justice & Equality to distinguish between cases involving 2018). While a greater level of parity is currently reviewing the outdated intentional “ill will or malice” towards a is created here by including seven Incitement to Hatred Act 1989. The victim’s characteristic and those which characteristics as potential forms of Scottish bill provides for a much needed involve targeting based on their perception hatred, the legal test for proving racial consolidation that offers greater parity of vulnerability, which may or may not be hatred will be different to the other six. in protection for victims of hate crime. linked to prejudiced attitudes. Cases that It will be possible to commit the stirring While this simplicity should help involve a perceived vulnerability are likely up of racial hatred by communicating to improve the effective application to fall outside of both lay and professional insulting, as well as threatening and of hate crime legislation, it remains interpretations of “ill will and malice”, abusive material, while all other types unclear which characteristics should therefore hate crime laws are unlikely to of hatred can only be committed by be included in hate crime law. Without be successfully applied. threatening and abusive material. carefully defined criteria for inclusion, If the law remains on the statute Bracadale had argued that the word “hate crime” as a category of law risks books without being applied in practice, “insulting” should be deleted from the becoming too nebulous. it risks exacerbating the sense amongst racial hatred provisions, ensuring that all Beyond the who, is the how. While concerned groups that the authorities types of stirring up of hatred offences the Scottish bill strikes the right balance are not sufficiently protecting them used the same wording. However, the Dr Piotr Godzisz, between protecting victims and protecting from targeted abuse. The University bill maintains this wording. We remain Birmingham City the freedom of thought and expression, of Sussex study recommendation to unconvinced that there is sufficient University and it has missed opportunities to modify a Professor Mark consider modifying the legal test to evidence that Parliament should treat Walters, legal test that includes archaic language, include a discriminatory model, or even racial hatred using a different standard University and which we believe is not fit for combined model, whereby a hate crime to other forms of hatred that are likely of Sussex purpose for all types of hate crime.

14 / June 2020 AS YOUR TRUSTED TITLE INDEMNITY PROVIDER, WE’RE HERE FOR YOU.

Stewart Title is dedicated to serving our clients during the unprecedented challenges brought on by COVID-19 as we all do our part to “flatten the curve”. To ensure that your transactions continue to complete speedily and with peace of mind during and after this lockdown, we can provide the following: Online Ordering Our Stewart Solution application enables you to get a quote for more than 150 title risks in three easy steps. Our technology can reduce time, costs and the risk of errors, streamlining your practice. Bespoke Solutions Our knowledgeable Underwriting Team is available for more complex matters or where you need to discuss your transaction. No Search and Search Validation Policies These policies are available to help your client’s transaction to proceed if you are unable to obtain the results of the normal Property Enquiry Certificates, as a result of changes to working hours or closures due to COVID-19.

Contact us to discuss your transaction. We would be pleased to assist you.

For bespoke services: For online orders: John Logan stewartsolution.com Sr. Underwriter & Solicitor 02070 107821 01698 833308 [email protected] [email protected] www.stewarttitle.co.uk

See policy for terms and conditions. Stewart Title Limited is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. Registered in England and Wales No: 2770166. ©2020 Stewart. All rights reserved. Registered office address: 11 Haymarket, London SW1Y 4BP. 06/20 CORONAVIRUS: CONTRACTS

COVID-19: the quest for contractual equity

COVID-19 has disrupted many commercial contractual relations, but dispute resolution must recognise an evolving backdrop of court closures, “breathing space” and payment holidays, as well as emerging dispute resolution processes. Malcolm Gunnyeon and Fiona Caldow report on some current developments

ontractual certainty has long been regarded as a fundamental component of our legal landscape. Businesses plan (and price) on the basis that the C contractual terms they sign up to will ultimately be enforceable, if need be through court action. However, the backdrop against which contract terms are enforced is rapidly evolving in response to the widespread disruption caused by COVID-19. Recent practical and legislative developments have had a dramatic impact on the ability to enforce contract terms and are necessitating a new approach to resolving disputes. devolved administrations, but is of interest across the UK. The guidance strongly encourages parties towards the The courts – adjournments and backlogs amicable resolution of contractual difficulties and disputes. A major practical hurdle to enforcing contract terms arose as It asks parties to be “reasonable and proportionate in responding soon as lockdown began. The Scottish courts adjourned all to performance issues and enforcing contracts (including dealing civil business, except the most urgent of cases. The courts with any disputes), acting in a spirit of cooperation and aiming to are now progressing some cases remotely, but hearings that achieve practical, just and equitable contractual outcomes”. While require witness evidence remain adjourned, and backlogs have the guidance states that it does not override specific contract inevitably led to significant delays for those cases the courts terms, it contains a list of particular examples of circumstances allow to progress remotely. where responsible and fair behaviour is sought, including making Our experience of remote hearings has been very positive payment demands; responding to force majeure or frustration and we hope to see many more cases progress by way of claims; calling up securities; initiating or continuing an insolvency videoconferencing and teleconferencing facilities in the process; claiming breach of contract; and enforcing default/ coming months, while social distancing measures remain in termination provisions. place. However, we anticipate that the impact of the disruption Published on 20 May, the UK Government’s Corporate will lead to delays in civil cases lasting into next year. Unless Insolvency and Governance Bill is a further significant a case is particularly urgent (for example, where an interim intervention because it dramatically affects the remedies order is sought), the courts are unlikely to provide a route available to creditors. The bill is expected to become law by to resolving disputes swiftly any time soon. July, with some provisions having retrospective effect. The key provisions extend to Scotland. The explanatory notes describe Government intervention the overarching objective of the bill as being to “provide The UK Government is taking an interventionist businesses with the flexibility and breathing space they need approach in order to help businesses avoid “Calls for the to continue trading during this difficult time”. insolvency and continue trading during this difficult The central proposal in the bill is a moratorium process to time. On 7 May, guidance was issued calling for law to respond enable companies to apply for a payment holiday, initially “responsible and fair” behaviour in the enforcement with equitable for 20 business days (but extendable) and overseen by a of contract terms where the performance of a monitor who will be a licensed insolvency practitioner. The contract is materially impacted by COVID-19. The solutions purpose of a company applying for a moratorium would be Cabinet Office’s Guidance on responsible contractual suggest we to facilitate its rescue, via a company voluntary arrangement, behaviour in the performance and enforcement of a restructuring plan of the type also introduced by the bill, contracts impacted by the COVID-19 emergency does could be on or a new injection of funds. The effects of the moratorium not have the force of law; rather parties are being the cusp of a on creditors of the company are extensive, and include a encouraged to follow it “for their collective benefit prohibition on commencing court action (unless leave of the and for the long-term benefit of the UK economy”. period of judicial court is obtained, noting that leave is not to be granted for The Cabinet Office guidance does not apply in the creativity” the enforcement of debts), on enforcing security, and on the

16 / June 2020 The concept note goes on to consider how existing legal principles could be applied by the courts to arrive at equitable solutions. The note points out that “as well as the scope of the doctrine of frustration, rules as to the implication of terms and the debate as to long-term relational contracts may be relevant… Another approach would be through the doctrine of unjustified enrichment, the question being whether, without declaring their contract at an end, the relations of the parties can be equitably readjusted by the court so that the one will not be unintentionally enriched at the expense of the other”. Innovation by the judiciary, relying on development of the law of frustration, the implication of terms, relational contracts (this is a reference to the development of the principle of good faith in the English courts), or unjustified enrichment, in order to arrive at equitable outcomes, is more controversial. Recent Supreme Court decisions have, rightly in the authors’ view, rejected calls to arrive at equitable solutions at the expense of contractual certainty. A theme common to the recent landmark Supreme Court decisions in the field of contract law is the need to respect the terms of the bargain struck between parties: see Arnold v Britton [2015] UKSC 36 (concerning contract interpretation), Marks & Spencer v BNP Paribas Securities Services Trust Company (Jersey) [2015] UKSC 72 (concerning implied terms), and the conjoined decision in the cases of Cavendish Square Holding BV v El Makdessi and ParkingEye v Beavis [2015] UKSC 67 (concerning penalty clauses). Judicial innovation in cases arising out of exceptional exercise by a landlord of a right of irritancy without permission circumstances to arrive at equitable solutions is likely to create of the court. unhelpful precedents. Intervention to address unfair outcomes Other proposals in the bill restrict the remedies available legitimately belongs in Government legislation, as we see with to creditors of all companies: the Corporate Insolvency and Governance Bill. • While not prohibiting the serving of statutory demands, the bill deprives them of utility by providing that statutory The way forward demands served between 1 March and 30 June 2020 cannot The manner in which businesses and their legal advisers form the basis of a winding-up petition. approach contractual disputes is one of the many processes • The bill also temporarily prohibits a winding-up order from that has to adapt to the current disruption. Enforcement being made in respect of a company on the grounds that it is options are limited and, where they are available, are unlikely unable to pay its debts, where the inability to pay is the result to result in rapid resolution. Deferring resolution until social of COVID-19. distancing measures are at an end and the courts have cleared • It suspends termination clauses operable on insolvency the backlog of cases will rarely be satisfactory, doing little to in contracts for the supply of goods or services, meaning that resolve underlying issues or the economic or mental stress suppliers can be required to continue to supply, even in the that has been caused. event of significant outstanding payments. Current circumstances have prompted a surge in interest in remote mediation, which can be a quick and low cost Judicial activism? method of resolving contractual difficulties. The use of Emerging calls for the law to respond to the disruption to videoconferencing technology allows the physical set-up of contractual performance with equitable solutions suggest that a mediation to be recreated, with parties “meeting” their legal we could perhaps be on the cusp of a period of judicial creativity. advisers in a breakout “room” beforehand, and the flexibility The British Institute of Commercial & Comparative Law issued a to switch between plenary sessions and the mediator joining concept note titled Breathing space – a Concept Note on the effect parties in their breakout rooms, much in the same way as an of the pandemic on commercial contracts, noting the exceptional in-person mediation. nature of current circumstances and need for debate on the There is room for creativity in the mediation process. “necessary contribution of the law to safeguard commercial We recently acted on behalf of a client in a “blind bidding” activity, minimise disruption to supply chains, and ameliorate the mediation, where parties put forward their settlement adverse effects of a ‘plethora of defaults’”. proposals in three bidding rounds, with a match resulting in

The concept note encourages a conciliatory approach Malcolm successful settlement. Now, more than ever, the inability to to resolving contractual disputes: “In many jurisdictions, Gunnyeon is a perform contractual obligations is arising from circumstances procedural rules already encourage conciliation – can these partner and Fiona outside of parties’ control. Remote mediation presents an be developed further to give a breathing space? The onus at Caldow a practice opportunity to work through those difficulties, preserve development least in the first instance would be for the continuance of a relationships and reach a resolution, enabling businesses lawyer in viable contract rather than bringing it to an immediate end.” Dentons’ Dispute to move forward and address the other pressing challenges So far, uncontroversial. Resolution team they are currently facing.

June 2020 \ 17 HUMAN RIGHTS

Protecting those small places A proportionate and informed legislative response to the COVID-19 crisis – and the period beyond – has to be based on human rights principles, and that requires scrutiny and collaboration, Seonaid Stevenson-McCabe argues

the midst of a process. Since then, a discussion global pandemic, paper has been published which it is natural to feel set out options for progressing concerned by the serious criminal cases during this In challenges that time. Separately, a short-term lie ahead. As working group to consider the governments wrestle with the practicalities of recommencing nuances of lockdown policies and jury trials, led by Lady Dorrian, strive to find long-term solutions has been established. to this crisis, many of us are This period of consultation has experiencing these concerns allowed diverse stakeholders to on a very personal level. share their concerns. Organisations Eleanor Roosevelt, when reflecting supporting victims of crime on the Universal Declaration of suggested that the opportunity Human Rights, noted that human to permit jury-less trials may have rights begin “in small places, close been “prematurely dismissed”. to home – so close and so small Concerns were raised by Rape that they cannot be seen on any Crisis Scotland, concerning the maps of the world. Yet they are the need to avoid cases collapsing world of the individual person; the and complainers being required neighbourhood he lives in; the school to give evidence again. It also or college he attends; the factory, Ensuring scrutiny of Government human rights really are “uppermost voiced concerns about the impact farm, or office where he works”. action at this time is crucial in terms in decision makers’ minds” when of prosecutorial delay in cases This has perhaps never felt more of protecting our rights. Civil society responding to the crisis. involving children. Referring to pertinent. We are in a worldwide organisations in particular are well the judgment of Lord Reed in crisis, but for many of us, we are placed to provide expert insight Jury trials: a case in point HM Advocate v P 2001 SLT 924, concerned about our individual while ensuring the Government is The importance of engaging with it recalled that “prolonged delay worlds: our families, our friends, our held to account. key stakeholders has perhaps in bringing a case to trial may also homes, our livelihoods. How do we In response to the Scottish inquiry, most clearly been demonstrated have seriously harmful effects upon protect these small places, close Human Rights Consortium Scotland in relation to the proposals a child complainer, especially (as to home, during a global pandemic? has co-ordinated the response of concerning jury trials in Scotland. in the present case) in a case of 30 civil society organisations and While the Scottish Government alleged rape”. Scrutiny initiatives highlighted their shared concerns. initially proposed to allow trials The discussions which have taken I suggest that we must begin by It was noted in their submission that: on indictment to be conducted place since the withdrawal of the ensuring rights-based scrutiny of “Various healthcare, social care and by the court sitting without a proposals highlight the importance government actions. Governments ethical guidance notes published jury, this was met with serious of stakeholder engagement and must, of course, respond rapidly to do not contain anything explicit concern from many in the legal scrutiny of emergency legislation. the crisis. However, it is important or detailed about the equalities profession. At the time, the Faculty There is no precedent for this crisis, that this swift response is based and human rights issues raised of ’ Scottish Criminal Bar and it is undeniably challenging. on human rights principles. by the pandemic.” Association suggested that the It is therefore vital that reforms are In this sense, it was positive To ensure human rights proposal “not only affects the rights considered carefully and opposing to see the Scottish Parliament’s compliance and transparency, of any accused person charged views are explored. By engaging Equalities & Human Rights the Consortium called on the with serious offences; but equally with stakeholders with diverse Committee launch an inquiry into Government and other public affects the rights of every citizen in perspectives, the Government can the impact of COVID-19 in late April. bodies to carry out and publish their Scotland”. In its briefing for MSPs ensure that decisions are informed As the inquiry was launched, the equality and human rights impact on the bill, the Law Society of and nuanced. This considered, committee convener, Ruth Maguire assessments in relation to COVID-19 Scotland made clear that it did not collaborative approach is all the MSP, stated: “The purpose of this decision-making. The Consortium support the proposals and stated more important in times of crisis, inquiry is to ensure that hard-fought emphasised that the assessments that the potential for a case backlog ensuring that our responses remain rights are uppermost in decision should be intersectional, taking as a result of the crisis was not proportionate and seek to balance makers’ minds when responding account of how particular groups sufficient reason for this departure the rights of all involved. to this crisis.” Similarly, the UK Joint in society are impacted. Engaging from jury trials. Select Committee on Human Rights with equality and human rights In light of these concerns, the Endemic inequality has launched an inquiry into the assessments at an early stage of Scottish Government withdrew As we begin to move towards implications of the pandemic, and policy-making, and publishing these the relevant section of the bill and the next phase of the pandemic is accepting evidence until 22 July. findings online, can help ensure committed instead to a consultation response, it is also important to

18 / June 2020 consider how we protect human opportunities for the public and civil rights as part of our longer-term “We have a unique opportunity to society to take part in budget scrutiny. recovery strategy. The UN has consider how we want to rebuild our Ultimately, human rights noted that, while the virus does principles should be seen as a not discriminate, its impacts society and tackle inequalities” tool to guide us. Examining our do, and that “longstanding responses through the lens of inequalities and unequal underlying human rights ensures that no one determinants of health are leaving workers will no longer be required NHS. As we emerge from this crisis, is left behind. To protect those particular individuals and groups to pay the immigration health we need to assess how we tackle “small places, close to home”, disproportionately impacted by surcharge, a fee of £400 per year the inequalities that were built into we need to ensure effective the virus”. When we emerge from paid by the majority of migrants our society prior to the pandemic scrutiny of Government actions this crisis, we have a unique to the UK. While details are yet to and which will undeniably have while planning for a future which opportunity to consider how we be confirmed, it is clear that many been exacerbated by the crisis. places human rights at the centre want to rebuild our society and people felt a sense of shame that The Scottish Human Rights of our decision-making. tackle these inequalities. those caring for us were required Commission has also outlined the To focus on one example where to pay this fee to use the NHS. need for future budgeting and inequality is endemic, as a practising However, there remains much to spending to take full account of Seonaid solicitor I worked with migrant and be done to reform our immigration human rights. In a report published Stevenson- refugee clients. I saw how damaging system. As noted by the Human in April, the Commission recognised McCabe is a solicitor and the UK’s “hostile environment” Rights Consortium Scotland, while the disproportionate impact of the lecturer in law approach to immigration policy was. “human rights apply regardless of pandemic on particular groups and at Glasgow Our immigration system separates immigration status”, individuals in emphasised the need to ensure that Caledonian University. She is the families, locks individuals in a cycle the asylum system have just over our economic recovery “tackles this co-founder of RebLaw Scotland, a movement exploring how law can of poverty, and marginalises the £5 to live on per day. Equally, it inequality, rather than exacerbating be used as a tool for social justice. most vulnerable. I was therefore appears the immigration health it”. Recommendations include a focus These views are her own and do relieved, albeit surprised, in recent surcharge will continue to apply on public engagement in budgeting not represent any organisation. weeks to learn that migrant NHS to migrants who do not work for the decisions, including providing more

IN ASSOCIATION WITH SNAPDRAGON

SnapDragon swoops on IP rights breaches

napDragon is an online flouting brand guidelines and merchandising brand protection company companies “simply copying” the glass, dedicated to fighting fakes to counterfeits of dubious quality and online. Born from our heritage, Glencairn had to act. Introduced S founder’s personal journey to SnapDragon by their trusted legal team, as an SME owner Glencairn briefed us to protect the iconic tulip experiencing counterfeits, SnapDragon has shaped glass, online. become a leading light in online intellectual The quick and efficient identification and property enforcement and brand protection, removal of copycat products online was key. defending brand revenues, reputations and, Hundreds of sellers were identified within just as importantly, consumers. that counterfeiters can be defeated, protecting weeks, leading to the removal of hundreds of Our pioneering software, Swoop, monitors innovators, businesses and customers alike. links across online marketplaces. Pertaining the world’s busiest online marketplaces We are incredibly proud of our team, and online data was easily captured for use by for copycat goods, identifying suspect the work that we do to protect businesses Glencairn’s legal team for formal actions infringements. Clients’ IP rights are then around the world. One such success story is subsequently filed in various territories. used to prove originality, ensuring removal closer to home… If you would like to find out more about of the listing, whether product or seller. how we could help one of your clients, please Swoop’s results offer great potential for Glencairn Crystal get in touch. Fierce online, friendly offline further IP filings, while also gathering hard Glencairn’s flagship glass has seen global (even in lockdown!). evidence of online infringement for litigation. success and with this, a multitude of Whatever the size or scale of the issue, our counterfeits and copycats emerged across Contact: [email protected] multilingual team of brand analysts ensures various marketplaces. From legitimate sellers or visit: snapdragon-ip.com

June 2020 \ 19 CORONAVIRUS: CRIMINAL COURT

That remote feeling

COVID-19 is bringing big changes in the way summary criminal business is conducted, but are we losing something of value in the push to go remote for public health reasons? Clare Russell has some concerns

any criminal court which came into force on 7 April, resulted in practitioner would attest, an some practitioners being dragged kicking and ordinary day prior to the screaming into a new digital world, faced with Government’s lockdown on custody hearings being dealt with (as far as As 23 March would have been possible) by electronic means. The Act allows filled with bustling court hearings to take place without the physical appearing to disengage with the process (more courtrooms, cell block and attendance of a person required to attend, who likely out of frustration with the link than with the police station consultations, and the not must then appear “by electronic means”. Such process itself), emotions being misinterpreted, and infrequent embrace or handshake from a client hearings can take place from any of the 10 hub unspoken signs going unnoticed. struggling to deal with the variety of emotions courts; but what problems does this present? that appearing in a criminal court brings. Videolink technology in courtrooms is not Further issues However, the COVID-19 pandemic has resulted new, having been introduced to allow vulnerable For a number of years now, criminal practitioners in long-discussed changes arriving in our witnesses to give evidence. However, that have utilised videolink facilities to consult with criminal courts more swiftly than anticipated. technology has proven to be notoriously unreliable clients in custody. Due to the recent public health Practitioners’ days are now unrecognisable, with and unsatisfactory, with recurring issues such as guidelines, a problem has arisen when consulting human interaction all but removed in an attempt regular loss of video or sound. Yet, even if these with counsel. In ordinary circumstances, to minimise the risk to judiciary, staff, the bar, problems were ironed out, practical limitations consultations would take place in person. and all who interact with the justice system. with the use of electronic links will remain. However, this no longer being safe or practical, This article will consider the difficulties facing For example, currently only four videolinked the possibility of three-way videoconference calls practitioners at present due to the practices and criminal hearings can take place per courtroom (solicitor, counsel and prisoner) on the solicitor to procedures that have been introduced to allow per hour. These 15-minute slots do not allow for prisoner link was investigated. the continued administration of justice, albeit problems with the technology, or more human It has been reported that such calls “were at a much reduced level. problems such as obtaining instructions from tested but were unsuccessful”. This has resulted With social distancing likely to remain for an upset and confused client who requires in a number of situations where the link has the foreseeable future, virtual assistance will support and assessment, the time needed been utilised but with counsel videolinking in on be crucial in allowing court business to resume, for the negotiations frequently required with a third device which requires to be held to the and we now have an opportunity to consider the (PF), or the necessary screen being used by the solicitor. Clearly this is how best to do this by learning from past issues, assistance of an interpreter, which inevitably not a satisfactory way to carry out consultations, present experiences and employing the best slows a hearing down. Those of us who have and will require to be addressed should social technology available. We can then consolidate used remote hearings, whether by video or distancing measures remain in place for a this system for use when the pandemic is over. telephone, find them to be more of a mental prolonged period. In the absence as yet of any indications as to strain and tiring on the eyes than first thought. While most criminal practitioners would how jury trials will resume in the High Court, This inevitably means that hearings take longer, undoubtedly prefer to appear personally to let alone in crowded buildings, the and frequent breaks are necessary. represent a client, we are all very conscious of the article will focus on how summary business Even if everything was streamlined to impact of any delay on the individuals involved might change to accommodate this new normal. perfection, one has to remember that ultimately in a case. It could therefore be considered good a criminal practitioner’s job, suited and gowned, news that further national guidance provides that Limits of the technology is to communicate a client’s position to the court. sheriff courts can now consider and dispose of At time of writing, criminal court business However, it is not just what we communicate, but cases through paper submissions where no trial in Scotland is mostly limited to urgent and how we communicate it. Videolinks often create is needed. This applies where “the solicitor for the essential custody hearings, such as applications a barrier and alter the perception of what is being accused and the prosecutor have agreed both the to extend custody time limits and urgent bail said, and communication therefore breaks down, plea(s) to be recorded and the facts on which the hearings. The Coronavirus (Scotland) Act 2020, with many possible repercussions, such as a party plea(s) proceeds and are each of the opinion that

20 / June 2020 an inconsolable, confused or vulnerable client in custody requesting a face-to-face consultation or presence at interview, it is all too easy to put your own health concerns to one side in a bid to alleviate any difficulties a client may be experiencing.

Questions ahead “Change is the law of life,” said President John F Kennedy, and while we are living in unprecedented times, thought has to be given to what the Scottish legal system will look like once lockdown is lifted. Like any other profession, criminal court practitioners are anxious to return to work, but we wish our health concerns to be allayed by a safe working environment. The interests of justice must not, however, be sacrificed to additional health protection measures, or the necessary additional costs in running an efficient COVID-19-secure court system. With the limited court business currently taking place, it is clear that there will be a significant backlog once the courts begin to run at increasing capacity. This is obviously the proceedings may be capable of determination helpful changes. These included dispensing with concerning, and at present there does not seem in the absence of the accused or the solicitor for the need for an applicant to sign a criminal legal to be any clear guidance as to how that backlog the accused”. aid form, and in some cases with the need to will be dealt with. One suggestion mooted is However, submissions on paper remove one of provide vouching. Further changes resulted in the that courts previously closed due to costcutting the very things at the heart of our legal system: ability to lodge interim accounts in both summary measures could be reopened. New courts may oral advocacy. The ability to respond to the mood and solemn cases. also be able to play a part by allowing hearings of the court, to pause if necessary, to answer More recently, following growing concern to be streamlined by electronic means. any questions that a sheriff may have, to have a in the profession, the Government allowed the The Inverness Justice Centre had a very sheriff look your client in the eye as you explain Board to include representation by way of written understated opening the week lockdown how they found themselves in the dock: that exchanges, for the duration of the COVID-19 commenced, and thus far has not had an dynamic interaction is undeniably important, and restrictions only, in ABWOR applications. opportunity to show its full potential. However, should not be overlooked moving forward. Ancillary to this, consideration is being given to on 12 May an Inverness commercial case It could also be argued that a positive change removing the half fee restriction where a solicitor before Derek Pyle provided has been made to the service of indictments. The with a pre-existing relationship with the client the first opportunity to test virtual hearings in new process allows service electronically over instructs the duty solicitor to tender a plea of not Scotland’s sheriff courts, via the court’s new the CJSM disclosure website. In tandem with this, guilty on an agency basis. In practice this would video platform. It has been reported that it was the PF’s office has advised that an email will be allow the duty solicitor to cover all new custody a positive experience for all involved, but we sent, with a follow-up phone call to ensure that cases on behalf of colleagues, thus reducing the must remember that is not representative of how there have been no technical difficulties with the number of solicitors in courtrooms without those criminal (or any contested) hearings could take service. Criminal firms have been encouraged to colleagues being punished financially. place, and as one limited experiment it must not confirm whether they are willing to accept such Police station interviews have also given many be used to do away with active representation service, and if service is declined, a hard copy pause for thought, with Police Scotland advising before a court. will be served personally in the usual way. Of that it is the responsibility of employers of non- This is especially true in the current course, digital service eliminates the need for police personnel to provide them circumstances where no criminal constables to attend at an office, thus reducing with suitable personal protective cases have even been tried under unnecessary contact for practitioners working equipment (PPE) – though the this model. While we should be during the pandemic. However, it is potentially majority of solicitors will not openminded, prepared to embrace open to challenge, if a technical error causes have or be able to access their new technology and ready to service via the disclosure website to fail and the own PPE. The Law Society of navigate what will be a decidedly follow-up protocols are not properly carried out Scotland maintains that solicitors’ more virtual legal landscape once or recorded. health and safety “should be their lockdown is lifted, we need to be primary concern”, and “there is no wary that this crisis is not used Out of court requirement to attend for a police as a Trojan horse to drive through Out of the courtroom, criminal practitioners interview if, in line with current Clare Russell changes which are primarily cost is a criminal have also found themselves facing challenging NHS and Scottish Government driven and have the effect of defence solicitor situations. Funding is understandably an issue at guidance, they feel it is unsafe for in Inverness undermining the role of criminal the forefront of many of our minds. Early in the them to do so”. While this is sound practitioners in the delivery of crisis the made some advice, in reality, when you have visible justice in a public forum.

June 2020 \ 21 IN ASSOCIATION WITH DENOVO

Work ON your business, not just IN it Let’s get our businesses ready for growth post-lockdown and create new ways of working that will be pandemic-proof

et’s face it… you’ve been approach and it is perhaps time to tailor the fee punched in the face. approach to the type of work you do. With approximately 44% of 6. People: Carry out your HR audit. Who do UK businesses now operating you employ? What do they do? Are there L a skeleton structure and 20% better options, e.g. sharing or outsourcing some shutting down completely, it facilities like cashroom, reception, etc? might seem like now is the time to just knuckle 7. Premises: Are they fit for purpose? Too big? In down, because (1) you have fewer staff to do the wrong place? Sublet? Co-operative? the work (furlough, etc) and you need to do 8. Marketing: Use your existing client base to it yourself; and (2) you’re simply trying your explore. Technology, like CaseLoad’s CRM from best to get through this and out the other end Denovo, will help to identify your clients by age, bruised rather than battered. However, lawyers location or work type. are smart and the ones we have been speaking 9. External marketing: Leave nothing untouched, to see an opportunity to get their businesses and at least explore and analyse the benefits ready for when things start to get back to normal, management analysis of the material differences. of social media, website, radio, press and email whatever guise that takes. For ease and convenience, in this article ‘IN’ is marketing. in you… ‘ON’ is the business owner 10. Business model: Will your model be fit for The gift of time you are. purpose looking to the future? Are you too big? We have all been given the gift of time. Did we “The consequences of COVID-19 are already Too small? Too specialised? Too general? Is the earn it? No. Did we expect it? No. Should we use horrendous for businesses, and its direct and market too local? Do you retain the skills to it to blow apart the deep-rooted approach of “If indirect impacts on legal practices are incalculable. develop the practice for the future? it ain’t broke don’t fix it” and get our business However, during lockdown you have an ready to grow post-lockdown? Absolutely, YES! unprecedented opportunity now, with space and #In this together Let’s create new ways of working that will be time like never before which is not interrupted by We have worked with the likes of The McKinstry pandemic-proof in these areas. ‘IN’ activities, to work on ‘ON’ activities.” Company and many others to help them take To build a growth business, you must work Graeme outlined a 10-point plan to maximise the pulse of their business, as well as analyse all on your business, not just in it. your ‘ON’ approach: aspects of their firm data, to allow them to make 1. Attitude: Recognise now that change for data-driven, informed decisions. How to work ON your business all is essential and no longer an optional extra. Getting started… The status quo won’t cut it post-lockdown. Every symptom needs It would be plain silly to try and tackle projects 2. Action: Prepare a consultation with key a unique solution in every area at once. If you try – and we’ve colleagues, because buy-in is important. Outline It doesn’t matter what your problem is – time known one or two firms who set out to – nothing various plans, each of which starts with a blank or marketing, cash flow or staffing, service or gets finished because there’s no focus. In fact, sheet of paper. technology problems – gowth can only restart you end up in total chaos. 3. Finance (WiP): A typical guide is that a law when you diagnose your barrier for growth and To compound the problem, you work according practice may have between three and four then build a solid action plan to address it. to your personal preferences and habits. You do months’ of work in progress that is simply Utilising software, like CaseLoad, is simple, the things you’re comfortable with and probably work done but not charged. Now is an ideal uncomplicated and cost-effective. And it will get avoid areas you don’t understand (most business opportunity to convert those files into fees. your business growing faster. owners avoid technology, accounts and dealing This is an easy quick fix and will help cash flow. with problem staff, for example). So, where do 4. Budget: Plan ahead and work to a strategy. you focus for growth? The budgeting approach can be either To read the full insight article and learn more incremental, simply by adding or subtracting about how to grow your business using CaseLoad, What our partners say an appropriate proportion of each cost, or visit denovobi.com/insights-hub. If you would like One of our key partners, Graeme McKinstry, alternatively the more empirical approach of to know more about how to begin a partnership Director of McKinstry Practice Management said: zero-based budgeting. with Denovo, email [email protected] or call “There is no space here for a full-scale, empirical 5. Fee structure: Not all work is suitable for each us on 0141 331 5290.

22 / June 2020

CORONAVIRUS: LICENSING

Licensed premises and the road to “normal” Licensed premises have been hit hard by the COVID-19 lockdown, and will continue to face difficulties even as it is lifted. Frances Ennis considers what steps might be available to operators, and their advisers

20 March this year, all support schemes, others, for example those most practical solution in the current situation cafés, bars, pubs and with a rateable value of over £51,000, and who is an application(s) to the local licensing board restaurants were closed therefore do not qualify for rates relief, will for an occasional licence. Many licensing boards as part of measures to struggle to survive over the coming months. have a six-week lead-in time for processing these On prevent the spread of There have also been reports of many being types of applications, which would clearly have to COVID-19. The closure of turned down for hardship and other grants. be relaxed if this was to work. hotels followed shortly The struggle is compounded for the tourism Secondly, planning consent may well be after. The sector was the sector, one of the most significant contributors required for additional space. Currently, consent first in the firing line and, by Minister Fergus to Scotland’s economy, which will likely miss the is only granted for 28 days and there is the Ewing’s own admission, will be the one to shut entire summer season. inevitable processing timescale and cost involved. the door behind it. All this for a sector which, in All of these would need to be relaxed if this is the last decade, has been at the sharp end of a Routemap out of lockdown to be workable in practice. Lastly, a tables and total overhaul of licensing legislation, seemingly At the time of writing, we are at the start of phase chairs permit is required for those wishing to disproportionately high business rates, tourism 1 of the easing of lockdown. The landscape – put street furniture on a public pavement. tax and Brexit. assuming we all behave ourselves – looks a bit Again, these permits do not always come It’s not just direct premises closure that affects like this for the trade: cheaply, and require, for good reason, risk these businesses; the misery is circular. The Phase 1 of four phases began on 28 May, assessment statements. When time and money failure – in some cases, overnight – of travel with the Government saying it will “no longer are of the essence, the relaxation of some of agencies and suppliers, to name but a few, has discourage” takeaway and drive-through these points must apply. already caused the demise of some well-known food outlets (putting aside the fact that many Schedule 5 to the Coronavirus (Scotland) hotels. That story will be repeated throughout licensing boards and licensing standards officers Act 2020 goes some way to acknowledging the country in premises of all descriptions. have played a critical role in supporting local the need for flexibility by, for example, relaxing And so it’s not just lawyers with liquor licensing restaurants and cafés transform their businesses previous statutory timescales and restrictions experience who need to be live to the issues that to a takeaway model during lockdown). But that’s and allowing for virtual licensing board hearings clients in this sector face. The success or failure it, so far as licensed premises go. during the current crisis. of a business with an alcohol licence will affect The glimmer of hope for the licensed trade The outdoor operation will be good news clients of all shapes and sizes: landlords, banks, begins in phase 2, starting 18 June. Pubs for those with enough land – or money – to pension trustees and investors, manufacturers and restaurants will be able to trade in open make it work. However, it will come as little and, inevitably for some, insolvency practitioners. outdoor spaces, provided physical distancing consolation to, for example, already struggling It is an issue which affects clients, and therefore and increased hygiene are adhered to. Outdoor city centre restaurants, or local independent lawyers, in all sectors. markets will also be allowed where appropriate cafés with at most half a dozen external covers. management of numbers is in place. Robust risk They will need to tough it out until phase 3, The early days of lockdown assessment and local authority cooperation will due to begin on 9 July. In that phase, pubs and Once the initial shock of lockdown was over, be critical for these clients. restaurants can open in indoor spaces, subject restaurants and licensed premises did what they As with everything regulatory, what is desirable to physical distancing. With the reopening of have always done. They met the challenges head in theory isn’t always possible in practice. There places of worship in that phase will come the on, through innovation and adaptation. This sector are a number of hurdles to overcome if a client reinstatement of marriage ceremonies, which is known for its resilience. Many of you will have wants to convert its business to take advantage coincides with relaxation on restrictions on benefited from your local café or restaurant’s of the allowances in phase 2. First, the premises accommodation providers such as hotels (it expansion into takeaway during lockdown. licence must already have an external area is worth noting that holiday accommodation However, while many in the industry “permission”, i.e. it must already be delineated in services can currently take remote bookings for a benefited from the Government’s financial the layout plan of the premises licence. If not, the future date). The wheels will begin to turn…

24 / June 2020 Staffing issues during and Health Organization, not least because it refers at least every three weeks, and the Scottish after lockdown to WHO criteria elsewhere in its guidance. Government has been at pains to say that dates are Despite the lockdown, it’s business as usual But with challenge comes opportunity, not set in stone and will be amended as appropriate. for licensed premises in terms of statutory and particularly in the tech world. Customers regulatory compliance. Personal licence training accessing menus via QR codes on their tables Stakeholder collaboration and renewal applications still require to be or apps on their phones would cut out the need As we’ve seen, key to the success of operators completed, and on time. The deadlines for these for a physical menu. But what about other hard will be co-operation at local authority level. have been publicly extended by many licensing surfaces – bread baskets, bottles of ketchup…? Practically speaking, that must involve the boards, with others showing similar levels of Will a bottle of hand sanitiser be the new prioritisation of “urgent” applications which can pragmatism on the ground. normal next to your salt and pepper shakers? either be dealt with under delegated powers Operationally, these premises will need Temperature checks at the door and revised or can be waved through unless controversial, to think long and hard about the logistics of seating layouts are also being trialled. Whether in much the same way as was often done with reopening. The COVID-19/Brexit double whammy any of these measures are realistic will depend personal licence applications during transition will almost inevitably mean depleted staff. That on an operator’s resource, both physical and from the old to the current Licensing (Scotland) in turn will impact on the number of on-site financial. But it will also depend on the nature Act. Although dealing with their own pressures, personal licence holders, which could then of the operation and its target audience. A high licensing boards have shown themselves to potentially affect the availability of the required capacity, high turnover model will struggle with be flexible and pragmatic, prioritising urgent designated premises manager on the premises. some of these measures. Equally, a small, high applications, often through written submissions. end restaurant may prefer to close its doors Implementing social distancing temporarily to having its clientèle quaffing The future As we’ve seen, none of these businesses can Chateau Lafite behind perspex visors. The future remains uncertain. But at least we operate, either on an outdoor or indoor model, are starting to talk about one. Beyond the unless they implement social distancing Phase 4 logistics of how to trade, the big concern for measures, including the two-metre minimum Phase 4 will apparently see those businesses able to survive contained in the Health Protection (Coronavirus) a return to the new normal the crisis will be how quickly (Restrictions) (Scotland) Regulations 2020. (whatever that may be!), subject consumer confidence will return. Therein lies another huge practical challenge. to compliance with public health That will depend on operators The footprint of some premises simply won’t guidelines. This will include mass being able to show that they can allow that. For those that have the physical gatherings. Again though, that is manage premises safely. But that space, it has been suggested that across the subject to public health and social cannot be done in isolation; it board, capacity might be reduced by up to distancing considerations. The requires both financial support and 80%. That is simply not sustainable. At the time resumption of mass gatherings will regulatory flexibility. After all, the of writing, the Government is coming under also bring challenges under civic Frances Ennis end of lockdown and the return is head of Litigation increasing pressure to revise this to one metre, government licensing. & Regulation, of business as usual are two very which is the distance referred to by the World Formal reviews will take place Bellwether Green different things.

June 2020 \ 25 PERSONAL INJURY

PI cases: behind the headlines The latest Scottish civil justice statistics provide some interesting trends and breakdowns for personal injuries actions, and tend to discount the notion of a growing “claims culture”, Catherine Hart believes

very year, the the local sheriff courts and, following its sheriff courts’ exclusive jurisdiction have Scottish Government introduction in September 2015, the All been responsible for a significant reduction publishes the latest Scotland Personal Injury Court (ASPIC), in personal injury business in the Court of civil justice statistics which is based in Edinburgh. Like the Court Session. Personal injury actions now only for Scotland. The of Session, ASPIC has jurisdiction to deal account for just over 23% of the Court of E figures for 2018-19 with actions from across Scotland. Session’s business. were issued in April At the same time as ASPIC opened for 2020. Where business, another significant change took Across the sheriff courts possible, the report provides comparative place. Before September 2015, where the Turning to ASPIC, the number of actions figures from 2009-10 onwards. The sum sued was over £5,000 an action could initiated there has increased from 1,143 information set out provides a useful picture be raised in either the sheriff court or the in the first year to 3,591 in 2018-19, a 9% of the trends in civil litigation across the . However, that figure was increase on the figure for the year before. country. For the purposes of the report, increased significantly with effect from The rise in actions disposed of, from 172 the year runs from April to March. 22 September 2015, with the result that only in 2015-16 to 2,962 in 2018-19, is of course Overall, the figures show a reduction actions for £100,000 and over can now be to be expected, as business makes its way in civil court actions raised in the various raised in the Court of Session. This means through the system. ASPIC now deals with courts across Scotland over the past that much of the former business of that nearly 40% of all personal injury cases decade. In 2009-10, a total of 117,839 court is now being dealt with at sheriff court in Scotland. actions were initiated, whereas only level, either in a local sheriff court or in ASPIC. Local sheriff courts have generally seen 72,107 were raised in 2018-19, a reduction Looking at the general picture in relation a substantial reduction in civil business, of 39%. The report refers to “the long-term to personal injury actions across the courts, from 111,737 cases initiated in 2009-10 downward trend in court business levels while the total number of actions raised to 66,241 in 2018-19, a drop of 41%. This over the last 10 years”. in 2009 was 9,766, the figure was 6% may seem surprising given the increase In terms of actions disposed of, the in privative jurisdiction, which might have figures are down by exactly the same suggested that the sheriff court would percentage, from 109,187 in 2009-10 “A picture is emerging of where experience a surge in civil business. to 66,153 in 2018-19. However, litigation rates in the sheriff courts The reducing levels of civil business personal injury actions are have been dropping since 2009-10, and are reflected in most case types, but the raised, with ASPIC the court of in 2014-15, the year before the increase most significant decreases were recorded in privative jurisdiction and the introduction for debt actions, which remain the most choice for accidents at work of ASPIC, the total number of actions raised common type of action in the Scottish civil and asbestos-related cases” in the sheriff courts was 71,605. courts, making up 40% of all cases. Debt Although personal injury actions can action numbers were down by 20% in still be raised in local sheriff courts, it 2018-19 when compared to the figures lower in 2019 at 9,146. This is, of course, was expected that the numbers would be for the previous year. a significantly smaller reduction than has affected by the option to raise in ASPIC The Court of Session has undoubtedly been seen in litigation rates as a whole. instead. In 2009-10, the total number of seen the most significant change in the The number of personal injury actions personal injury actions initiated in the sheriff level of new business. Whereas 6,102 initiated in the Court of Session in 2018- courts was 6,436 (under both the ordinary actions were initiated there in 2009-10, 19 was 527. Looking back at the figures cause and summary cause procedures), and that figure was down at 2,275 for 2018-19, published for 2009-10, just under 3,500 in 2014-15, the year before ASPIC was set a drop of 63%. personal injury actions were raised there up, the total was 6,195, whereas in 2018-19 Against that backdrop, this article will and indeed those actions made up 76% that figure had dropped to 5,028. focus on the statistics for personal injury of the total number of actions raised in So while there has clearly been a reduction actions and what these suggest about the the Court of Session. in the number of personal injury cases trends in this type of litigation. In 2014-15, the year before ASPIC was raised in local sheriff courts, the reduction established, 3,015 personal injury actions is perhaps not as significant as might have Court of Session changes were raised in the Court of Session, so it been expected, which seems to suggest that By way of context, personal injury actions seems clear that both the introduction of solicitors are still keen to raise in local courts, can be raised in the Court of Session, ASPIC and the increase in the level of the perhaps for reasons of convenience.

26 / June 2020 The split of business across the three these claims, 83% were raised in ASPIC and, already discussed, a picture is emerging courts demonstrates that the majority of overall, this category of claim represented of where personal injury actions are personal injury actions are raised in local just under a fifth of the total number of being raised, with much of this business sheriff courts, which deal with around 54% personal injury actions raised in 2018-19. being dealt with in local courts, and of that business, with around 40% of actions Although numbers are relatively small ASPIC emerging as the court of choice for raised in ASPIC and the remaining 6% in the in comparison to other areas, there has accidents at work and asbestos-related Court of Session. been a significant rise in clinical negligence cases, with over 80% of those cases being On that basis, the principal source of cases – 189 in 2009 rising to 342 in raised there. The personal injury business business for ASPIC seems to be actions that 2018-19, an increase of just over 80%. This of the Court of Session has reduced would previously have been raised in the represents a 62% reduction on the number significantly, and the latest figures show Court of Session. of clinical negligence actions raised in 2017- a spread of actions raised there, with around 18. However, the figures for this type of 105-120 actions in each of the main types of Personal injury actions by type action have fluctuated over the past decade business (RTA; accident at work; asbestos; The report also provides a helpful breakdown and the most recent figure is more in clinical negligence). RTA actions are very by type of personal injury cases initiated and keeping with the general level, whereas the much the focus of the personal injury cases disposed of across the various courts. number of actions raised in 2017-18 (901) raised in local sheriff courts. There has been an increase in claims was very much out of step with the overall The downward trend in litigation arising from road traffic accidents (RTAs), levels in the previous decade. in general since 2009-10 is reflected although this is not as significant as might be Asbestos litigation is another area in in the number of personal injury actions expected. In 2009-10, 4,635 RTA cases were which there has been growth, with 638 raised, which in 2018-19 was down by initiated and in 2018-19 the number was actions initiated in 2018-19, nearly 20% 6% compared to the figure for 2009-10. 5,462, a rise of 18%. Although the 2018-19 more than in 2009-10 and an increase There was also a 3% drop when compared figure showed a very slight drop on the level of 12% on the 2017-18 figure. to the figure for 2017-18. for the previous year, RTA claims continue to The final category in the breakdown Although it is regularly suggested that be the most common type of personal injury by case type is “other”, which includes fatal Scotland is developing a “claims culture”, the action and the figures demonstrate that cases. This category has seen a drop of 56%, figures do not support this argument and around three in five personal injury cases from 2,557 in 2009-10 to 1,136 in 2018-19. clearly demonstrate a reduction in litigation, raised related to RTAs. Of the personal injury both overall and in relation to personal actions raised in local sheriff courts in 2018- No “claims culture” injury actions. While it is certainly the case 19, 87% were RTA cases. Overall, the number of personal injury Catherine that not every claim will result in court There has been a drop of 15% in actions actions raised in Scottish courts in the last Hart is a proceedings being raised, with settlements for damages arising from accidents at work 10 years has been between 8,000 and professional being reached without the need for litigation, support since 2009-10, when the number raised 10,000, with the exception of 2011-12 lawyer and the figures confound the idea that personal was 1,844, to 1,568 in 2018-19, which was when the number fell below 8,000. partner with injury claims are on the rise, certainly when a minimal increase on the year before. Of Several years on from the reforms Digby Brown it comes to litigated cases.

June 2020 \ 27 Briefings

June 2013 and February 2017 in Glasgow, Sex crimes: where they lived, and raping her in February 2017. A docket in the indictment narrated that the cases between 2011 and 2013 the appellant engaged in sexual activity with the complainer in England when she was 14 and 15 years old. continue At the conclusion of the Crown case the Despite the lockdown, some important decisions assault charge was withdrawn. The appellant have been handed down by the Criminal Appeal was convicted of rape. The complainer said in Court covering several aspects of sexual offence evidence that they had met when she was cases, as well as bail applications where an 14 and the appellant 27. Shortly afterwards extended period has been spent on remand they began a sexual relationship. Two years later the appellant moved to Glasgow and asked the complainer to join him when she left Criminal Court school on her 16th birthday. They lived together between 2013 and 2017 and married in 2015. FRANK CROWE, A son was born that year. No objection was SHERIFF AT EDINBURGH taken to this evidence. The complainer further stated that the relationship was volatile. Arguments came to Lockdown law a head after they attended a family party on A lot has, or hasn’t, happened since lockdown 19 February 2017. She became distressed and on 23 March 2020 and the Health Protection after contacting her half-sister expressing (Coronavirus) (Restrictions) (Scotland) suicidal ideation, her family arranged to travel Regulations 2020 and associated legislation from Somerset to collect her and the child. coming into force on 26 March. Ten hub courts The rape took place on 21 February and at one have been sitting to deal with custodies – point the appellant tried to strangle her. After sometimes long into the evening – and most her family took her away later that day, her civil business has been in suspended animation. half-sister noticed bruises on her neck. The The courts are there if you want to plead guilty, complainer simply said they were caused by but there have been a few appeal cases heard the appellant strangling her. When the appellant and reported, which has kept me in business. kept up a barrage of phone calls and texts, she I write ahead of the starting date for the sought police advice about harassment and Scottish Government’s routemap, but I see disclosed the rape. effect that absence of reasonable belief did not that reopening courts and tribunal buildings, The appellant denied intercourse prior to require corroboration was wrong in law. Lack of playing golf and going to the tip are included the complainer moving to Glasgow, denied this reasonable belief was one of the three essential in phase 1, so that would see me pretty much move had been at his instigation and said the elements of s 1 rape. Previous authority was back to normal and away from prolonged intercourse charged as rape had been at the wrongly decided in suggesting that no direction spells over a hot stove conjuring up vegetarian complainer’s request to make up with him after on absence of reasonable belief was required meals for the family. an argument. unless it was a live issue. A short term working group has been On appeal it was contended, first, that the trial The Crown highlighted that no objection had established, led by the , judge erred in directing the jury that they could been taken to the docket at the outset, and the tasked with restarting jury trials. It will look at take into account the narrative in the docket. complainer had spoken to intercourse without how physical and practical constraints might By that point, intercourse when the complainer her consent and through force. Evidence of be overcome, and how far jury size will make it was 14 or 15 could not be said to be part of the distress and evidence of injury corroborated easier to apply social distancing. We did go down same series of offences as the rape. While it her account. to seven person juries during World War 2, with was relevant how the couple came to know one Their Lordships agreed, and in relation to the five votes needed for guilty. My feeling was that another, the evidence was no longer relevant to second ground of appeal referred to Doris v HM quite a backlog of solemn cases built up before the remaining charge, rape. The judge’s failure Advocate 1996 SCCR 854, Lord Justice General lockdown, since when further valuable time has to direct the jury to ignore it resulted in the jury Hope at 857, and Blyth v HM Advocate 2005 been lost. All hands will be at the judicial pump taking into account an irrelevant and highly SCCR 710, Lord Justice General Cullen at para from August, so it will be interesting to see how prejudicial matter. 10: “While it is no doubt correct as a proposition matters are taken forward. The second ground concerned which of law that the crime of rape is not committed if Meantime there are a few important elements of the charge required to be the man believes that the woman is consenting, decisions to report, mostly in the context of corroborated. The complainer gave evidence a direction to that effect where the Crown case sexual offences but also about the ultra-topical of a forcible rape and the appellant’s position is that sexual intercourse was obtained by force subject of bail. was consent. It was argued that contrary to is unnecessary.” dicta in Graham v HM Advocate 2017 SCCR 497, The moral here is that if you don’t like Dockets; reasonable belief reasonable belief was a live issue in every the docket, objection should be taken prior These two thorny issues in rape cases arose in case libelling contravention of s 1 of the Sexual to trial and not after the evidence has been RKS v HM Advocate [2020] HCJAC 19 (22 May Offences (Scotland) Act 2009, just as honest led. Notwithstanding the “new” definition of 2020). The appellant went to trial on charges belief would be in every case prosecuted rape, if there is evidence of force, absence of of assaulting his partner on occasions between at common law. The judge’s direction to the reasonable belief is not necessarily an issue.

28 / June 2020 Procedure (Scotland) Act 1995, the “shield” legislation to protect complainers from being questioned about their sexual history. This case is notable for the partially dissenting judgment by Lord Malcolm in a very thorough and thoughtful opinion. In almost all rape cases these days the parties are known to each other to some extent, and brief evidence of any friendship/ relationship/context is necessary for the jury to understand the case. The accused faced trial on charges of sexual assault and rape under the 2009 Act, and a related charge of attempting to pervert the course of justice by disposing of his mobile phone. The sexual offences were alleged to have occurred on the night of 11 and 12 January 2019. The s 275 application sought to lead evidence of: (a) The accused and complainer attempting to book into a hotel on 1 January 2019. The couple were told there were no rooms available but were seen kissing and cuddling in the reception area. It was said they took a taxi to the complainer’s mother’s house where they had consensual intercourse. The complainer’s position was that she had been very drunk after a New Year party and woke up at home fully clothed the next morning. She did not have intercourse. (b) The complainer and accused consensually kissing and touching each other over their clothing in the livingroom at her home at the Moorov and beyond no one else present; the appellant took steps time of the allegations in charge 1. PGT v HM Advocate [2020] HCJAC 14 (2 April to ensure the complainers told no one else; (c) The complainer having consensual 2020) considered a three charge indictment the complainers, and also the appellant, had intercourse with another man on 12 January, involving two complainers. Two charges been under the influence of alcohol. The time shortly after the alleged offences. consisted of sodomy and indecent assault on gaps were not so lengthy that compelling or The issues at trial for which the evidence the appellant’s nephew when he was 12 or 13 extraordinary similarities were needed. was considered relevant were the complainer’s years of age between March 1997 and March The court had no difficulty holding the credibility and reliability, the accused’s defence 1999, and indecent assault in March 2000. The trial judge had been correct; the similarities of consent, and an alternative explanation for third alleged rape by the appellant on his wife were such that it could not be said that on the complainer’s distress. It was asserted that during 2006. no possible view could the jury draw the the complainer said on 12 January that she The first complainer had been given alcohol appropriate inference. had not had a previous sexual relationship with prior to the incidents, and had also been It was further contended that the credibility the accused; and that she denied any other drinking at a family party prior to the second of a complainer in a mutual corroboration case recent sexual relationship but following her incident. After both incidents the appellant should be tested within a single silo, no matter complaint and examination by a doctor, DNA threatened to tell the boy’s parents about his how many complainers made allegations of from an unknown male was recovered, whom behaviour unless he co-operated. a similar nature. The court considered the she named in a supplementary statement in The appellant’s wife said they had returned assessment of such facts a matter involving September 2019. home after a social event; the appellant was a practical application of the jury’s combined The preliminary hearing judge allowed drunk. She had wanted to go to sleep but he intelligence and experience. Referring to Adam evidence to be heard in respect of paragraph (b) raped her. He then told the complainer not to v HM Advocate [2020] HCJAC 5, their Lordships but refused the other requests. tell her parents or sister. She had not disclosed highlighted the difference from general At the appeal hearing the Crown indicated the incident until 2017. similar fact evidence which was not generally that the complainer had intercourse with A no case to answer was repelled, the admissible if all it did was prove a general another man a day of two prior to 11/12 judge holding there were a number of points propensity on the part of an accused to commit January, and that it did not propose to lead of similarity: the offences took place in the a specific type of crime. The appeal was refused. evidence about the events of 1 January, or appellant’s home; both major incidents involved that the complainer had shown no interest forced penile penetration; both complainers Another old chestnut: s 275 in the accused sexually and had spurned his were vulnerable; each was a relative of the SJ v HM Advocate [2020] HCJAC 18 advances. It was prepared to agree 10 pieces of appellant; both crimes involved removal of lower (28 April 2020) is the latest in the plethora evidence about how long the couple had clothing and were committed in a bedroom with of appeals about s 275 of the Criminal known one another, without going into any

June 2020 \ 29 Briefings

sexual details. In light of this the application perpetrated by an employee would not normally was amended, restricted to going to the hotel Corporate entail vicarious liability for the employer. and kissing and cuddling on 1 January, and a Furthermore, the “close connection” test STEPHEN COTTON, PARTNER, narration that the complainer had given a false WRIGHT, JOHNSTON (Dubai Aluminium Co Ltd v Salaam [2003] answer at medical examination on 13 January. & MACKENZIE LLP 2 AC 366) was not satisfied. The court was of the view that evidence The ruling is also of particular note in relation that the relationship between the complainer The Supreme Court provided two judgments to how, if at all, the common law concept and accused had included prior amorous or on 1 April 2020 clarifying the law in relation to of vicarious liability might be affected by consensual sexual behaviour of a limited kind vicarious liability, WM Morrison Supermarkets v statutory data protection and data breaches was not relevant, especially since the events of Various Claimants [2020] UKSC 12 and Barclays where employees, and contractors, act as 1 January were at some distance from the main Bank v Various Claimants [2020] UKSC 13. independent data controllers. The court did charges. As regards the medical examination, Perhaps the key learning tip is to read both not have to rule on the detail here (because the reasons paragraph had not been amended judgments given they, particularly the Morrisons it had already decided there was no vicarious and in light of the new information that decision, give us both (1) an entertaining history liability) but, usefully, indicated that imposing intercourse with the other man had taken place of the concept (including why having an affair statutory liability on a data controller such as beforehand on another occasion, it was held to with the partner of an armed police officer is not the employee was not inconsistent with the be irrelevant. The application was refused. the smartest move you can make), but also (2) co-existence of vicarious liability under common some clear 21st century limiters on the potential law. The court concluded it was irrelevant that Bail during lockdown? for employers to find themselves on the hook a data controller’s statutory liability under the Part 4 of sched 4 to the Coronavirus (Scotland) for an employee, in the language of Joel v DPA concerns, in essence, a lack of reasonable Act 2020 inter alia suspends the 140 day Morison (1834) 6 C & P 501 at 503, “going on care, while vicarious liability for the conduct of solemn time limit for up to six months from a frolic of his own”. an employee requires no proof of fault. 26 March 2020. Bail appeals have been dealt As Lady Hale notes in Barclays, there are with for many accused persons on remand on a two requirements before vicarious liability Barclays change of circumstances, due to the suspension can be established. “The first is a relationship The case involved a group litigation against of the courts except for limited business and the between the two persons which makes it proper the bank in relation to numerous allegations of uncertainty when trials, especially jury trials, for the law to make the one pay for the fault sexual assault perpetrated by a (now deceased) may take place. of the other. Historically, and leaving aside self-employed general medical practitioner who, Against that background the case of JD and relationships such as agency and partnership, at the house where he was operating his own BK v HM Advocate [2020] HCJAC 15 (3 April that was limited to the relationship between business, assessed and examined prospective 2020) was heard. The appellants, who had employer and employee, but that has now been Barclays employees. In a unanimous decision, appeared on indictment in the High Court, were somewhat broadened. That is the subject matter Lady Hale delivered the lead judgment and charged with stouthrief, namely entering the of this case. The second is the connection overturned the Court of Appeal’s decision. complainer’s house, placing a knife at his throat between that relationship and the tortfeasor’s The key issue was whether or not the and robbing him. They had been remanded in wrongdoing. Historically, the tort had to be doctor’s business was being carried on “on custody on 22 July 2019 with an initial time committed in the course or within the scope his own account” or whether there was a bar of 18 November. At a preliminary hearing of... employment, but that too has now been on 14 November they intimated their readiness somewhat broadened. That is the subject to proceed to trial, which was fixed for 25 matter of the Morrisons case.” March 2020 with the time bar being extended unopposed until 2 April. Morrisons On 27 March trial was postponed in light An earlier briefing (Journal, December of the COVID-19 pandemic. A new preliminary 2018, 29) covered the earlier rulings hearing was fixed for 19 June and the time limit in the Morrisons case which found extended until that date. Bail was sought as the the employers liable for data appellants had been on remand for a significant breaches deliberately committed period. Both had significant records including by a disgruntled employee. previous convictions for theft, assault, robbery The Supreme Court has not and housebreaking. only overturned the earlier Refusing the appeals, Lord Carloway set rulings but, in doing so, has out the following criteria where bail ought not also provided guidance to be granted: in relation to the second • The accused is charged with a serious offence aspect of vicarious liability. which, if he were to be convicted would be likely In short, the public to attract a substantial custodial sentence. disclosure of the data • The nature of the accused’s record, or was not so closely other circumstances, indicates that if at liberty connected with the task he would be likely to commit further violent of transmitting the payroll offences (including sexual and domestic abuse) data to the auditors that and/or obstruct the course of justice. it could properly and fairly The assessment of the judge at first instance be regarded as made while “should not lightly be interfered with by the acting in the ordinary course of appellate courts”. employment. A personal vendetta

30 / June 2020 IN FOCUS Intellectual property ALISON BRYCE, PARTNER, DENTONS UK ...the point is to change it & MIDDLE EAST LLP Brian Dempsey’s monthly survey of legal-related consultations With everything that is going on at the moment, Cohabitation parliament.scot/parliamentarybusiness/ it is easy to forget that a world existed before The has extended CurrentCommittees/115036.aspx lockdown. However, there has been a recent the deadline for comments on its discussion Respond by 24 July via the above web page. development in trade mark law that should pull paper reviewing the cohabitation provisions our attention away from the Government’s daily in ss 25 to 29 of the Family Law (Scotland) Carer’s leave briefings, if only for a few minutes. Act 2006. See www.scotlawcom.gov. With added relevance given the current The five year relevant period uk/publications/discussion-papers-and- COVID-19 crisis, the UK Department for Donald Trump recently lost a battle over his consultative-memoranda/2010-present/ Business, Energy & Industrial Strategy seeks branded merchandise at his Scottish golfing Respond by 30 June via the above web page. views on a proposal to give employees a right resorts. A company based in Luxembourg raised to one week of unpaid leave each year to a challenge against the “Trump” mark in relation provide care. See www.gov.uk/government/ Regulating cosmetic to classes such as clothing, footwear, furniture consultations/carers-leave procedures and alcoholic drinks. They argued that for the Respond by 3 August via the above web page. The Scottish Government has extended the required continuous five-year period the mark deadline on its consultation seeking views had not been put to “genuine use”. A trade on how to ensure that people who carry out Impact of COVID-19 mark may be challenged and revoked after five non-surgical cosmetic procedures such as lip As noted last month, Holyrood’s Equalities years if it has not been put to genuine use in enhancement or dermal fillers, are competent & Human Rights Committee is closely connection with the goods or services for which and appropriately trained. Currently anyone monitoring the impact of COVID-19 emergency it is registered. can carry out such procedures in entirely powers on equalities and human rights in Trump provided evidence of sales of goods in unregulated premises. See www.gov.scot/ areas including mental health provisions, the particular classes, but this only comprised publications/consultation-regulation- school pupils with additional support needs, six bottles of whisky, a single pair of socks, a independent-healthcare/ social security and socio-economic impacts, shirt and a solitary bathrobe during the relevant Respond by 30 June via the above web page. rurality and criminal justice. See yourviews. period. The EUIPO concluded this evidence was parliament.scot/ehrc/impact-covid-19- not strong enough and cancelled some of the Extending hate crime pandemic-equalities-human-rights/ marks as the evidence was not sufficient to show genuine use. Trump’s actions are common The Scottish Parliament’s Justice Respond at any time up to 1 January 2021. within the EU. Generally, rights holders can Committee has launched a call for views register broad trade marks on the basis that on the Government’s Hate Crime and Public … and finally they cannot be attacked for non-use until five Order (Scotland) Bill (see lead feature in this Also as noted last month, the Just Transition years have elapsed. issue). The bill would create a new offence Commission seeks views on socioeconomic Recently, however, a case involving media of “stirring up hatred” against persons on justice in light of the Climate Change and telecommunications company Sky the basis of various protected characteristics, (Emissions Reduction Targets) (Scotland) Act challenged this approach. Sky has, like many and may be amended to include “variations 2019 (see consult.gov.scot/just-transition- others, registered some broad trade marks to in sex characteristics” so as to include commission/just-transition-commission-call- protect its brand. These marks were called into non-binary “intersex” persons. See www. for-evidence/ and respond by 30 June). question after a party they were pursuing for infringement raised a counterclaim. Sky v SkyKick relationship “akin to employment”. If the doctor arrangement), the doctor had his own insurance, Sky had raised an action against SkyKick, a was carrying on his own independent business could refuse to do a requested examination if he software company, for trade mark infringement. then it was unnecessary to consider the five chose, and conducted examinations for a range Lengthy court proceedings concluded in the tests detailed in previous case law (see Various of other clients. High Court in April. In the end, it was found that Claimants v Catholic Child Welfare Society [2012] As an aside, Lady Hale also gave helpful SkyKick had in fact infringed some of Sky’s UKSC 56). guidance in relation to the concept of trade marks. Its marks were similar to, and being Here, the facts demonstrated the doctor “independent contractors” and s 230(3) of used on products and services covered by, had been in business in his own account. the Employment Rights Act 1996 (and the Sky’s registrations. There was also an issue that Consequently the bank was not vicariously definition of a “worker”). In short, although the consumers might be confused between the two liable for his assaults. The court recognised the s 230(3) definition could be useful in relation brands and assume SkyKick was a sub-brand of allegations of very serious harm having been to ascertaining who is a true independent the better known Sky. However, the particular caused but, in these particular circumstances, contractor from an employment point of view, it issue of infringement is not what makes this considered the doctor not to be an employee. is not helpful in relation to ascertaining vicarious case significant. Amongst other factors the bank paid a liability because of the differing reasons behind SkyKick raised a counterclaim that in fee for each report (there was no retainer the development of the two concepts. some of the areas it had allegedly infringed,

June 2020 \ 31 Briefings

Sky did not actually offer goods or services damage associated with acting in bad faith. The information, their provision should be officially despite having registered marks. As such, Sky courts were already inclined to limit rights as a added to the TFC’s functions; should not be allowed to hold the marks in result of non-use, evident from the Trump case (3) consider extending the TFC’s role to relation to such goods and services. It was noted above. A party could now challenge a include alternative business arrangements such suggested that these registrations were in bad trade mark, provided it can demonstrate proper as joint ventures or business partnerships; faith. Interestingly, this counterclaim was raised evidence, on the basis that it is too broad or (4) the TFC might provide mediation services within the five year period of protection. This there is no intention to make use of it. In these to parties where relationships have broken issue was referred to the CJEU (Sky plc v SkyKick circumstances, it is now to be expected that down but codes of practice have not necessarily UK Ltd (C-371-18)). The question asked was: if a protection could be narrowed by the court been breached; trade mark is registered without intention to use on a bad faith basis. This will be something (5) the TFC should always be consulted it, can that fact alone make the mark invalid (or for all prospective applicants to keep in mind in relation to land reform and agricultural partly invalid) on the basis of bad faith? when deciding on the scope of protection tenancy matters. The CJEU was also asked for clarity around they require and how they wish to carry out whether trade marks could be declared invalid enforcement actions. COVID-19: tenants’ amnesty on the basis that the specification lacked clarity On 30 March the TFC, in association with or precision. It was suggested that Sky’s mark in industry bodies NFUS and SLE, issued advice relation to “computer software” was too broad about the implications of the coronavirus and potentially imprecise. (COVID-19) situation for on-farm meetings, with particular reference to rent review and European clarity the tenants’ amnesty. In January, the CJEU issued its decision. Included in the advice was that landlords The main points passed down were that a and tenants should postpone rent reviews due lack of clarity or precise specification of terms Agriculture this spring unless these will be straightforward used to describe a mark was not a ground for and can be concluded without face-to-face ADÈLE NICOL, PARTNER, invalidity by itself. However, if there was a lack LLP meetings, and that landlords and tenants of intention to use a mark for a particular good should be reasonable about allowing the or service that it had been registered for, it could amnesty process to remain alive even after be considered to be registered in bad faith. This the amnesty period. The latter advice has now could then be grounds to invalidate the mark. Tenant Farming been superseded by legislative reform to the Considering the case in light of the CJEU’s Commissioner review Land Reform (Scotland) Act 2016. decision, the High Court found that: A statutory review of the functions of the Draft regulations to extend the tenants’ • there was no evidence that Sky intended Tenant Farming Commissioner (TFC) was amnesty were submitted on 13 May to the to offer any of the goods or services in certain released by the Scottish Government on 1 April. Rural Economy & Connectivity Committee, classes in which it had applied for protection, Stakeholders had been asked for their views on which voted for their approval. The regulations, nor was there any prospect of it doing so in the TFC’s functions since the inception of the the Land Reform (Scotland) Act 2016 future; and role in 2017. (Supplementary Provisions) (Coronavirus) • Sky had applied for broad registrations, in Stakeholders were asked for feedback on the Regulations 2020, come into force on 12 a number of classes, as a “purely legal weapon” success and effectiveness of the TFC’s current June and extend the date by which amnesty and not for intended use. functions, and to provide suggestions for other proceedings must be initiated by six months, As a result, the court held that some of functions which they believed should be added until 12 December. Sky’s registrations were made in bad faith and to the TFC’s role. Largely it was felt that the the protection Sky held was narrowed. For role was still very new, so amending the TFC’s COVID-19: residential tenancies example, its protection for “computer software” functions may not yet be appropriate. While not strictly agricultural law, many farm was narrowed to apply only to software There was however support for increased businesses include an income stream from the supplied as part of Sky’s services, such as home TFC involvement in contentious matters. letting of cottages. The Coronavirus (Scotland) entertainment, and “data storage” was limited to Although the TFC currently has the power Act 2020 put in place emergency legislation in data storage in relation to audio-visual content. to refer points of law to the Land Court, this various sectors, including protection of tenants Nevertheless, not all of Sky’s registrations were function has not been exercised. Increased in private residential tenancies. limited and SkyKick was found to be infringing involvement might lower costs for parties and All mandatory termination grounds become on those that remained, such as email services. alleviate some of the burden on the Land Court. discretionary grounds, including the “no fault” There was also support for the TFC gaining ground to terminate a short assured tenancy New risk greater punitive powers, rather than simply on the basis it has reached its expiry date. The Rights holders can be relieved that the recommending a course of action. landlord must establish that a ground or CJEU has ruled that trade marks with broad There were no recommendations to remove grounds exist which justify an eviction, but even specifications, such as “computer software”, any of the TFC’s current functions at present. then the First-tier Tribunal may only issue an may not be vulnerable to invalidation. This case In light of the responses to the survey, order for eviction if it is satisfied it is reasonable reaffirms that generally rights holders have the five recommendations are made to the to do so. standard five year period to establish use unless Scottish ministers: The periods for notices to leave have been bad faith can be established. (1) to better ensure compliance with the extended to: This case does highlight a new risk for rights TFC’s codes, the TFC should be empowered • 28 days if the ground is that the tenant is not holders with wide registrations. Despite its to sanction and impose financial penalties on occupying a let property as the tenant’s home; success, Sky has had its trade mark protection those in breach; • three months for certain grounds, including pared back and now may suffer reputational (2) to continue to deliver guidance and antisocial behaviour, criminal behaviour or that

32 / June 2020 the house is required by the landlord or their reporting, meeting ongoing requirements or TUEs, whereabouts family for their own use; completing corrective actions may be affected. and ADO activities • six months for grounds including rent As long as athletes remain subject to testing, arrears, the landlord or lender wants to sell, Testing during the pandemic they remain responsible for ensuring they have change of use or major refurbishment, or the WADA has stated that testing will continue a valid therapeutic use exemption (TUE). If they tenant is no longer an employee. where no mobility or physical contact have difficulty accessing doctors during the Rent arrears must have existed for three or restrictions have been put in place by local pandemic to secure necessary documentation more consecutive months. The tribunal must authorities: thus testing may still occur any to support their TUE application, they should be satisfied that it is reasonable to issue an time, and anywhere. If testing can continue, document all actions and impediments to eviction order. In considering whether to do so ADOs need to put enhanced measures in complying with the relevant requirements, the tribunal must consider the extent to which place to protect the health of athletes and and this will be considered on a case-by-case any delay or failure is a consequence of delay sample collection personnel. ADOs have been basis. There is the ability to request a retroactive or failure in the payment of housing benefit or advised to conduct only the most critical TUE in exceptional circumstances, as described universal credit. doping controls. If testing can continue, but the in the International Standard for Therapeutic The Scottish Government has put in place situation in the country is not fully stable, ADOs Use Exemptions. a loan scheme to assist landlords who are will focus their testing programme on targeted Unless the ADO notifies otherwise, athletes affected by loss of rent, but it is unlikely to be athletes from high risk sports and disciplines, should continue to provide whereabouts of assistance to any landlord who lets houses including those in their registered testing pool information as they remain subject to testing. as part of a farm business. (RTP), and prioritise urgent missions. If they wish to share information about their The Energy Efficiency (Domestic Private WADA has said that athletes cannot refuse health, self-isolation or mobility restrictions, Rented Property) (Scotland) Regulations 2020, to complete a test unless there is a mandatory which may impact doping controls, they due to come into force on 1 April 2020 to isolation or lockdown in place. Athletes are are encouraged to share this with their introduce a minimum band E when a house is advised by WADA to comply with testing while whereabouts submission. relet, have been delayed until after the current following the preventative measures put in ADOs are being allowed an element of crisis has passed. place by their ADO. If athletes refuse to be discretion to determine how their other activities tested or do not complete the sample collection will be impacted, including investigations, process after notification, or if they are not able and results management. ADOs may look at (or willing) to provide a sample due to a lack of additional ways of continuing certain activities. protective measures, their refusal will follow For example, hearings may be conducted via the normal results management process which videoconferencing. ADOs can continue to collect affords them due process and the opportunity and assess any information and intelligence Sport to justify their actions. received which may result in an investigation If athletes are concerned that they may have or target testing. ANDREW MAXWELL, SOLICITOR, HARPER MACLEOD LLP contracted the virus, they should prioritise their health. In an anti-doping context, they should Post-COVID advise the relevant ADO of their situation with WADA is closely monitoring where levels of Due to the pandemic there is no sport taking their whereabouts submission or when doping testing have been reduced or cancelled. When place and major events, like EURO 2020 and control personnel notify them for testing, so that the sporting landscape returns to normal, these the Tokyo Olympics and Paralympics, have been they can adjust their plans accordingly. gaps in testing may be addressed through postponed or cancelled. However, additional targeted testing. the world of sport has not WADA acknowledges that placing public stopped entirely. Many athletes health above the anti-doping system means continue to train in isolation, that there will be impacts on the fight against and anti-doping organisations doping. However, there are significantly fewer (ADOs) continue to test athletes. competitions taking place. It is also important This is of particular importance for athletes to remember that to ensure that once sport doping control samples resumes, athletes and fans continue to be stored for can be sure that competition future analysis, and that is clean and fair. with the athlete biological The World Anti-Doping passport (ABP), some samples Agency (WADA) stated that collected post-COVID-19 may there are no plans to change reveal indications of doping that occurred existing requirements under the during the period. World Anti-Doping Program. Some doping manipulations or substance WADA fully acknowledges intakes have longlasting effects, or remain the complexities of this detectable in the body long enough that unprecedented situation they can be revealed by an efficient ABP and will work to ensure that program or specific types of analysis. its compliance monitoring ADOs will plan the collection of ABP blood programme provides a samples on sports that are part of existing level of flexibility based on ABP programmes as soon as the situation circumstances. Deadlines for returns to normal.

June 2020 \ 33 Briefings

Lease, but not as we know it With the retail sector in a parlous state, the traditional landlord-tenant relationship is equally under strain and new forms of lease are being tested for whether they strike an appropriate balance of interests

Property JOHN GALLACHER, CONSULTANT, MORTON FRASER LLP

The coronavirus pandemic has exposed the fragility of the landlord and tenant relationship in the high street, if the recent collapses of a number of well known and indeed high profile retailers are anything to go by. The focus by the UK and Scottish Governments in providing support to businesses, in the high street at least, has been centred on supporting employees of retail businesses (primarily tenants) impacted by the pandemic. In order to avoid similar collapses within the landlord community, landlords are now looking for support from the UK and Scottish Governments. One option being considered is a type of furlough scheme for unpaid rent. This would allow landlords to continue to support their tenants yet the lease structure of today has least, a performance based top-up • Factory outlet lease: The turnover as each sector gradually eases from fundamentally remained the same. designed to reward the shopping rent lease has essentially evolved lockdown and operates at much Whilst alternative leasing models centre owner for innovation of the into the factory outlet type of lower levels of activity, due to social offer a potential solution by more environment which they control lease, which is fundamentally distancing measures, lower footfall properly aligning the interests of and which directly benefits the a turnover rent lease but often and with a higher cost base due to the landlords and the tenants, it tenants’ businesses. with lower base rents and higher additional security and enhanced is recognised that there is no one • Turnover rent lease: This type turnover percentages. Such leases cleaning costs. size fits all. of lease offers a degree of flexibility have a greater degree of flexibility High street retailing is in a state The International Council of around the level of base rent and around termination where turnover of flux and has been so for some Shopping Centers (ICSC) produced the turnover percentage to allow, falls below an agreed threshold, years now. The current pandemic a research report in June 2016, on the face of it at least, a sharing a greater degree of control over has only brought that state of flux Exploring New Leasing Models of the risk. However, in the world of tenant-mix and brands, and the to the fore, but perhaps it will be the in an Omni-Channel World, which online retailing a percentage based ability to address underperformance catalyst to a systemic change in the looked at the different leasing solely on a point of sale turnover through rightsizing/relocation or nature of the landlord and tenant models in the US, the UK and does not recognise the contribution exiting by agreement, or indeed relationship itself. across Europe. The ICSC report that the physical store makes to supporting the retailers through considered the contents of the an online sale. Retailers often on-site events such as fashion Leases of tomorrow alternative leasing model toolbox refuse to share online sales data shows. As such this model is One particular aspect of that and found: and therefore any attempt to make seen as being more aligned to the systemic change may be the lease • Fixed rent lease: Rentals are fixed allowances for such contribution interests of both landlords and structure. The consumer’s journey to the retail price index or similar through adjustment of base rent tenants. However it fails, as with today is totally different to the rather than open market value with, or turnover percentage is no more the turnover rent lease model, to consumer’s journey of yesteryear, in the case of shopping centres at than an approximation. recognise the contribution made by

34 / June 2020 the physical store to online sales. to a completed sale are many, performance from the unit and the does not rest in the hands of the • Geo-fence lease: Another varied and complex, and the ability landlord’s asset management skills landlords and tenants alone, they evolution of the turnover rent lease/ to track that journey through the but which also provides low risk have a significant role to play in factory outlet lease where, in an capture of data is paramount to with a diversified but consistent shaping a sustainable environment attempt to address the contribution the landlords and the tenants income growth. that will allow retailing to flourish made by the physical store to agreeing appropriate and workable in the years ahead. However, both online sales, online sales from performance metrics. It must be Question of survival landlords and tenants do need to a designated postcode catchment recognised that if there is to be a Both landlords and tenants have come out of the other side of the area are allocated to the physical step change through understanding their interests to protect and may current pandemic first. What is store. Different percentage rates and leveraging off of these data, be reluctant to engage fully with clear is that the pace of change would be applied to different there needs to be collaboration, each other. However, if a step in e-commerce, retailing and categories of sale so that click agreement and innovation around change in the landlord and tenant big data analytics on consumer and collect, in-store ordering, etc the data whilst, at the same time, relationship is not achieved, the behaviours and patterns is are accounted for in assessing the addressing the issue of privacy retail collapses of the recent past unprecedented, and landlords physical store’s contribution to the in how the data are captured, may continue unabated and the and their tenants cannot afford online sales. managed and utilised. voids that will inevitably follow may for their respective businesses to • Alternative performance metrics lead to the closure of the shopping be left behind in the digital stone model: This model was suggested Where does value lie? centre. That, in turn, may lead to age, pandemic or no pandemic. by both landlords and tenants, and The Achilles’ heel of alternative the potential collapse of landlords “It is not the strongest of the recognises not only the contribution leasing models has been the unable to remedy covenant species that survives, nor the most made by the physical store to perception (and indeed often breaches associated with the drop intelligent that survives. It is the sales but also the investment and the reality) that value is eroded. in rental income, not least as a one that is most adaptable to management experience of both However, whilst that may be the result of the current pandemic. change.” So says Charles Darwin retailers and their landlords in case for some, it is not the case Whilst the future of retailing in his Origin of Species. delivering the sales and rewards for all. The factory outlet centre for both their efforts. In order to appears to have enjoyed a measure take steps towards that outcome, of success over its big cousins in both landlords and tenants will the shopping centres in recent require to collaborate with each years. Clearly this cannot be wholly other and agree new performance attributed to the lease structures metrics to determine appropriate adopted, and there will inevitably and workable rent metrics. That will be other forces at play, but it does be founded in understanding and demonstrate that there is life (and leveraging the big data captured value) beyond the fixed rent, full by both landlords and tenants. repairing and insuring lease model. Each of the available alternative Blurring the line leasing models, as indeed the fixed Lines between bricks and mortar rent model, has a role to play in the retailing and online retailing are landlord and tenant relationship being erased as retailers integrate of tomorrow. However they are FREE CONSULTATIONS their online and offline businesses. not without their challenges, be it The role of the physical store, the impact on value or the inability The impact of Covid-19 upon legal businesses is rather than being marginalised, is properly to recognise the physical incalculable. seen as being key in the marketing store’s contribution to online sales and fulfilment of an online order. or the embryonic stage of the It is hoped that this shift to omni- alternative performance metrics channel retailing will, with the model. The landlords and tenants We advise on future proofing to protect and improve profitability, stability and to promote growth and availability of big data and analytics of tomorrow, if they are to navigate security. Now more than ever is the time to act. in retailing, underpin the alternative their way out of the current fragile andWe offer guidance two free for theconsultations future. across the whole leasing models of the future that market, will require to adopt the spectrum of practice management offering answers will be required to meet the future most appropriate leasing structure Thriving beats surviving! challenges of high street retailing. for their property, one which is This special offer is available to all legal practices The touchpoints from the flexible and dynamic in the way throughout Scotland until 31 August 2020. consumer’s interest in an item it not only aligns the tenant’s Contact:

“Landlords and their tenants cannot Tel:01292Graeme McKinstry 281711 afford for their respective businesses McKinstry Practice Management to be left behind in the digital stone Email: [email protected] age, pandemic or no pandemic”

June 2020 \ 35 Briefings Keeping calm and carrying on What lessons does the COVID-19 pandemic have for legal risk management from an in-house perspective? Taking stock could be a good starting point

Can we learn from the current crisis? I suggest realised that the best laid plans of mice and In-house the answer to this question is a resounding “yes”. men often go awry. The former heavyweight It is too early to reach conclusions, but here are champion, Mike Tyson, expressed it more IAN JONES, SOLICITOR AND FORMER GC observations that may help you as you think savagely: “Everyone has a plan until they get about the future legal risks to your business punched in the mouth.” It is inevitable that most or clients. plans are bent out of shape early on. Adaptability For most of us, the COVID-19 pandemic is unlike and speed of action will be required in the legal any other risk event we have ever encountered. Focus of planning team. This requires teams to act collegially and The uncertainty about the causes of the An immediate risk we face is we may end up in confusing situations when information is plain pandemic, incomplete information, schools being in our future planning trying to resolve the wrong or just speculation. “On the job training” is shut, huge numbers of people being furloughed, pandemic, instead of focusing on the next risk. not always the best way to operate. and emergency powers used by peacetime After 9/11, international risk surveys showed Do not see the shortcomings in your pandemic- Government to keep us in our homes: these businesses putting terrorism and security fears related decisions as necessarily a failure. You had seem unreal. It is strange and for some at the head of their agendas. For years after the to make quick decisions and we get those wrong. unnerving. Sadly, for some, the experience 2008 financial crash, financial market resilience Good risk managers are those who understand has also involved human cost: death, job loss, was the top of the list. The resources we need to that point. Analyse the divergence from your and economic hardship. manage risk are finite and sometimes scarce. original plans and understand why it happened. As lawyers, there is much for us to take on We must not be conditioned by prior events but Such an exercise is a great evaluation tool. board. The pandemic is a global issue, but many keep an open mind. Businesses should revisit questions about the “new normal” come from the their risk planning on a holistic basis. Risks Wood and the trees “first world”. We have not seen death first-hand on should not be weighted in favour of the one that You may have seen how many entries on the such a scale since 1945. Ask somebody from Asia has just occurred. risk register are categorised as single risk events. or Africa, and their perspective will be different. Understanding how humans react when hit by In reality a major incident is usually a number Since 2005, five out of the world’s top 10 events that are low probability of incidence, but of unrelated risks, often referred to as a perfect costliest natural disasters in history have major catastrophic impact, is vital. We already do storm. Like storms, risk events come in waves, occurred. We probably remember the Asian risk preparation: for example, how to avoid being triggering further direct and indirect events. tsunami (2004) and Hurricane Katrina, but the charged under the Bribery Act 2010. Those subsequent events generate further Haitian and Sichuan earthquakes register less A lot of training has been given since the Act events that cause more damage. These situations in the consciousness. Between 1995 and 2004 came into force about how we should identify are described as cascading risk events. They are alone there were 595 global epidemics, of which potential situations for bribery and how to something else to think about. 346 were in Africa and 154 in Asia. manage it. Much of it focuses on what the law For planners, information is important, but you says, rather than teaching people the right way should not allow data to obscure knowledge. Altered perception to act if a bribe is requested. Is this really the I am not sure that 10 weeks of daily Government Put candidly, until now, natural disasters happen right approach? We need to teach people about news conferences are particularly effective in to others. This is not a political point (although behaviour, not the finer points of law. giving people insight. “The problems are solved, it is easy to see how a political point arises), I imagine pre-COVID-19, most people had not by giving new information, but by arranging but from a risk management perspective, an business continuity plans. Many have now what we have known for a long time,” observed important one. Perception of risks informs our Wittgenstein. You will have got lots of insight appetite for taking risks and how we attempt to from the last 10 weeks and it would be foolish manage those risks. when reviewing plans not to draw on those For many lawyers, risk management is In-house risk online CPD experiences. This seems obvious, but many a recent thing. Before, it was the preserve businesses do not carry out reviews, let alone of specialist risk managers who seemed to Ian Jones is currently presenting a series of use such findings. spend their time preoccupied with complex in-house risk webinars for the Law Society Lawyers should focus on near hits (“near miss” mathematical models and spreadsheets. of Scotland. The series will also be made is a misnomer) in their contracting arrangements, We periodically review our risk register and available on demand. Find out more at property, health and safety obligations, data inevitably expand it as we think of new and more www.lawscot.org.uk/members/cpd-training privacy responsibilities and other legal areas exotic risks. That has been the extent of our role. that the pandemic has affected.

36 / June 2020 The real world example, the horror of the Grenfell fire resulted hospitality etc), your organisation’s contingent It is worth reflecting for one moment on a in anger that the block was occupied by many liabilities may overwhelm its resources when particular legal tool that has received much impoverished, immigrant families living in one of the claims roll in. attention in the last three months: force majeure. the richest boroughs in the world. Some people So now is the time to take stock for the next Virtually every major law firm has issued scholarly considered that to be murder. Lawyers are often major shock to your organisation. It will probably briefings about force majeure and frustration. seen as the corporate conscience. Exerting not be a pandemic, but something else that people Informative, but they miss the practical point. influence on risk decisions through an ethical downplayed or overlooked: remember my earlier Claiming termination for force majeure to replace lens may save your organisation’s reputation comments about perception. Lawyers should a supplier when, due to the pandemic, there are (and the economic value of its brand) one day. use this time to evaluate the legal controls and no substitute suppliers to go to will be no help Good ethics is good business. mitigations that they have available to them to whatsoever. Many chief procurement officers who assess fitness for purpose. Like it or not, in the age have spent years building complex supply chains, Hidden lessons of lean organisations, “just in time” supply chains which are based on relationships, are unlikely to When reviewing the risk management plans, may be too high a risk and you may need to build be impressed by the lawyer advising termination a key balance is vulnerability versus resilience. in redundancies to ensure better resilience. in this situation. When reviewing your contracts An excellent example in the legal context is the I have lived through and been involved in because of the pandemic, organisations need use of limitation of liability caps. In many contract managing several corporate crises. The main to understand the significant limits to contract negotiations, limitation caps are set in a fairly lesson I have learnt is that the world will be just remedies in the real world. rough and ready way, by reference to the ability as uncertain in 2021 as in 2020. Do not start The pandemic has underscored the need for of an organisation to insure, or the contract value. ripping up your continuity plans just yet, but use an ethical risk decision-making. Criticism of the A better measure would be the tolerance of an your time wisely to glean the wisdom hidden UK Government for prioritising the NHS over care organisation to accept the consequences of a risk in the information you have. homes has been huge. The shocking statistics incident. Ask: “What resources will we maintain in In the meantime, keep calm and carry on. of imbalanced death rates have led to sincere accepting the consequences of those risks?” moral outrage. Translated into corporate risk This last point is thrown into sharp relief when Ian Jones is a solicitor and former general counsel governance terms, the views of those who take an event, like a pandemic, results in many claims. with particular experience in risk governance, the greatest impact of risk incidence should be Failing to track the aggregate value of liability evaluation, planning and training. He also writes considered; to ignore them opens the decision caps given spells trouble. If the world stops, and teaches on subjects as diverse as ethics and maker to potential reputation damage. For like it has done in certain sectors (e.g. airlines, mental health. Picture © Jo Scott

FROM THE ARCHIVES 50 years ago 25 years ago From “Glasgow Bar Association Study Conference”, June 1970: From “The Requirements of Writing (Scotland) Act 1995”, June 1995: “Mr Bovey, of Glasgow, moved that the practice of law should be “The Scottish Law Commission report contained a coherent package nationalised. Mr Bovey was at pains to prove that 80 per cent of of reforms. With the Act, many of the peculiarities of our law will legal work has no social utility whatever and that the language disappear, along with injustices, such as those arising from notarial and procedure used is out of date and irrelevant. His listeners execution. For some, the disappearance of the familiar will cause much enjoyed his reference to ‘granting and craving’ as being more problems, but Scots conveyancers with their usual flexibility will properly interpreted nowadays as ‘ranting and raving.’ More seriously adjust. We have, after all, adjusted to the Matrimonial Homes (Family Mr Bovey made the point that important issues and matters are Protection) (Scotland) Act 1981 and non-supersession clauses. The not now being referred to lawyers. Issues of real political or social Requirements of Writing (Scotland) Act, by comparison, should not interest are decided by laymen or members of other professions.” present many problems.”

June 2020 \ 37 In practice

“Difficult reading” in gender equality reports Findings of round tables in which people from across the legal profession examined gender equality issues have been published by the Society. Four reports, respectively covering the gender pay gap, flexible working, bullying and harassment, and bias, detail the findings of 15 round tables held across Scotland in the second half of 2019. Posted in the research and policy section of the Society's website, they continue the work begun in 2018 by the Society’s Profile of the Profession research. Amanda Millar and Ken Dalling John Mulholland, outgoing President of the Society, said the reports made for “extremely interesting, if at times difficult, reading. They give a unique and telling insight into the experience of our members Millar, Dalling and highlight that, while progress has been made in the profession in the pursuit of gender equality, much remains to be done”. He added: “I urge everyone in take up office the profession to read the reports and consider how they and their erth-based solicitor Amanda huge team of volunteer committee members on organisations could change to help build Millar has taken up office as emergency support measures.” a more inclusive profession.” President of the Law Society of She added: “I am in no doubt that becoming The Society’s Equality & Diversity P Scotland, with Ken Dalling of President at this time presents the next Committee will consider in depth all the Stirling as her Vice President. significant challenge of my life, but the suggestions made and publish its plans Profiled in last month’s profession has responded to the challenges in the summer of 2020. Journal, the President said it was her very that have arisen from the pandemic with great privilege to represent the solicitors’ admirable collegiality across all sectors in the profession. “Over the last year in my role as interests of supporting clients, business, justice Wood is new Vice President, I have had the opportunity and human rights and I am committed to lead to get involved in a variety of important the Society in supporting the Scottish solicitor regulation head issues which affect the legal profession, from profession to be in the best possible shape to Rachel Wood WS has speaking at events celebrating 100 years of weather this unprecedented crisis.” joined the Society’s women in law, providing a ‘non-techie’ voice The first from the LGBTQ+ community to Senior Leadership on the LawscotTech advisory board and more assume the presidency, Millar said she was team as the new recently, as the COVID-19 crisis unfolded, mindful of the significant opportunity of her executive director working alongside John Mulholland and our position as a role model. of Regulation. With more than 25 years’ post- qualifying experience, she has worked in various risk and compliance roles over the last 15 years, including as director Four new faces join Council of Risk & Knowledge at HBJ Gateley and most recently Client & Legal Project Four new members are among those UK Ltd polled ahead of candidates including the Management lead with Pinsent Masons, returned to the Society’s Council following fifth previous member, Colin Anderson. Edinburgh. She succeeds Phil Yelland, who this year’s elections. Returned unopposed in Ayr, Dumfries, has retired after 30 years at the Society. In Aberdeen, Banff, Peterhead and Kirkcudbright and Stranraer were Lauren Fowler, Chief executive Lorna Jack said: “In Stonehaven, Deborah Anne Wilson is joined and new member Sharon Fyall of Pollock & a strong pool of candidates Rachel by new member Michael Kusznir of Raeburn McLean in Thornhill. Paul Matthews has stood impressed the panel with her enthusiasm Christie Clark & Wallace, Aberdeen. Jane down after serving on Council since 2012. and the depth and breadth of her Dickers has stood down from Council. In Airdrie, Hamilton and Lanark, Paul knowledge of regulation of the legal Four existing Council members were Gostelow was successful along with new profession both here in Scotland and in returned in Edinburgh: Sheila Webster, Susan member Catherine Monaghan of Moore & England & Wales.” Murray, Jim Stephenson and Susan Oswald. Partners, Cumbernauld. Paul Nicolson has New member Christine McGregor of BayWa R.e. stood down from Council.

38 / June 2020 OBITUARIES PUBLIC POLICY HIGHLIGHTS WILLIAM “BILL” HUNTER (retired solicitor), Ledbury The Society’s policy committees analyse and respond the fundamental protections of our equality and On 7 April 2020, William to proposed changes in the law. Key areas are human rights framework. Legislative change must Hunter, formerly employed highlighted below. For more information see be lawful, necessary, proportionate, time limited and with South of Scotland www.lawscot.org.uk/research-and-policy/ non-discriminatory. It further highlighted the need Electricity Board (SSEB), to ensure proper scrutiny of legislation and that Dumfries. Coronavirus (Scotland) (No 2) Bill Government is held to appropriate account; given the AGE: 97 Following the work done on the first UK and Scotland compressed timetable, there should be close post- ADMITTED: 1950 bills, the Coronavirus (Scotland) (No 2) Bill saw legislative scrutiny of how the Act works in practice. the Society submit consultation responses, issue At stage 2 the Society paid particular attention ALEXANDRA ISABEL briefings at each stage of the bill and give evidence to to amendment 8, which changes the current law to BUICK (retired solicitor), the COVID-19 Committee. remove the requirement for a , solicitor Glasgow The Criminal Law, Trusts & Succession, Civil or advocate to be personally present when a person On 2 May 2020, Alexandra Justice, and Obligations Committees contributed to signs a document, takes an oath or makes a solemn Isabel Buick, formerly the Society’s response to the call for views on the affirmation or declaration. The Society supported employee with Cochran proposals. In addition to the changes proposed in this and acknowledged its gratitude to the Scottish Dickie & Mackenzie Ltd, the consultation, they highlighted other areas where Government for lodging it. From its own research, the Paisley and latterly changes could be introduced to assist during the COVID-19 crisis was impeding notaries fulfilling legal associate with Adie Hunter, current crisis: police station interviews; adults with requirements and there was a clear public interest in Glasgow. incapacity; and limitation and . allowing the personal presence rule to be relaxed. AGE: 74 On police station interviews, the response put ADMITTED: 1967 forward a suggested amendment to the term Restarting jury trials “present” in the Criminal Justice (Scotland) Act 2016 The consultation response acknowledged that the GARY ROBERTSON to facilitate solicitor access at the police station, Society had supported the courts’ closure in March PIRRIE, Musselburgh ensuring social distancing or the use of technology. 2020 to protect lives and avoid the spread of the On 2 May 2020, Gary Similarly, it proposed that “appearance” be clarified to coronavirus. In light of the recently proposed phased Robertson Pirrie, partner include attendance and/or representation by virtual resumption, it emphasised the need to restart all of the firm Alex Mitchell & or remote communication. Such clarification would be criminal business as a priority. The focus lay with Sons, Musselburgh. welcomed by prosecution and defence, and it would solemn business, involving a wide range of cases. AGE: 51 be in the interests of justice to retain it in future. Possible solutions for restarting such trials have ADMITTED: 1992 Regarding the Adults with Incapacity (Scotland) Act inevitable implications for the availability of judges, 2000, the response echoed the suggestions outlined and other business, both civil and criminal. Safety for by the Society’s President to the Cabinet Secretary of all involved in the court is paramount, with measures NOTIFICATIONS Health and Sport, noted in last month’s Journal (p 31). in accordance with ongoing and emerging health ENTRANCE CERTIFICATES Finally, it put forward recommendations on advice to meet the requirements for social distancing. ISSUED DURING APRIL/ amendments to limitation and prescription. It The following were significant in adopting a flexible MAY 2020 proposed the disapplication of limitation and solution: accommodation for solemn trials being FERGUSON, Stuart Graeme prescription periods for the duration of the COVID-19 available; supportive technology; a motivation in both JOHNSTONE, Kate Anne situation, highlighting the benefits of doing so to prosecution and defence to be proactive; an urgency McCORMICK, Yvette Fiona debtors, consumers, creditors, the court system and to restart trials; monitoring and evaluation of and PATRICHE, Laura the profession. feedback on the solution; and maintaining jury trials, REEKIE, Kirsteen Margaret In its briefing ahead of the stage 1 debate, the this not being the time to fundamentally change the Louise Society emphasised the necessity of a “whole- justice system through judge-only solemn trials. of-government, whole-of-society approach, built The Society welcomed the announcement by Lady around a comprehensive strategy to prevent Dorrian that jury trials are to restart in July. infections, save lives and minimise impact”. It was crucial to keep people safe in the Scottish legal The Policy team can be contacted on any of the system, protect the rule of law and the interests matters above at [email protected] Trainee rates of justice, preserve access to justice and maintain Twitter: @lawscot unchanged

The recommended rate of pay Lockton’s risk health check Notaries able to act remotely for trainee solicitors will be held at £19,500 for first year Video technology can now be used Are you planning a review of your letters of engagement and core trainees and £22,500 for second to allow notaries to authenticate firm’s risk management regime? competencies/dabbling, and can years for the year from 1 June execution remotely, following a If you’re not sure where to start be found at www.locktonlaw. 2020, the Society's Council has change to the law in the Coronavirus or what to prioritise, Lockton, the scot/news/risk-management- decided. (Scotland) (No 2) Act 2020, relaxing Society’s broker, has put together healthcheck-survey-1.html President Amanda Millar the requirement for a notary to be a series of short questionnaires The questionnaires are entirely explained: “Trainees are the physically present. to help you evaluate your firm’s confidential. You do not need to future of our profession and The Society has added updated processes and procedures and submit your name or details of we want to continue to ensure guidance to its coronavirus identify any potential areas for your firm, unless you want further that they are paid fairly for the information web page on applying improvement. assistance from Lockton. They work they do. However, we fully this temporary change, under The questionnaires will focus are simply aimed at providing an understand the pressure that Practice updates/Notary Public – on different topics over the next introduction to risk management firms are under to control their execution of document. few months. The first covers across some key areas of practice. costs, including salaries.”

June 2020 \ 39 In practice

AGM REPORT Now screening... The Law Society of Scotland’s 71st annual general meeting on 28 May was also a first – the first to be held entirely online. Peter Nicholson reports

hanks to the lockdown that the President coronavirus, an particularly praised. Across the event that might board, the Society’s teams had been originally have at the forefront of offering practical T been exclusive to solutions, and some committees gentlemen in had worked “flat out”, often into the three piece suits became one that night. “I have been humbled by the could only be attended via response from the earliest days of BlueJeans – the technology chosen the crisis,” he stated. to support the remote presence of On the Society’s £2.2 million members around Scotland, and package, “Doing nothing wasn’t an indeed even further afield. option... It shows the support we With thousands potentially have always shown to members.” participating, what would the One other “first” got a mention – response be? Registrar David Cullen the solicitor who brought her new informed us that 115 had made the baby to her admission ceremony. necessary advance registration; still to vote, who had to state “for, personal and professional challenge And yes, the child had slept soundly my screen told me 47 were linked against, for”, or whatever. In the none of us could have predicted”. throughout; and yes, kissing in at the scheduled 5.30pm start event, there were only a handful of But he was now even more babies was now also part of the time, 58 when President John dissenters, and the 20% cut in the impressed and inspired by those in presidential duties... Mulholland decided to proceed at PC fee to £460, a key plank of the practice, who had shown resilience Concluding with warm thanks 5.36, and between 60 and 64 for Society’s COVID-19 support package, and commitment. to the Society’s executive most of the hour and three quarters passed by 135 votes to four. The high regard for the Scottish and his co-office bearers, he the proceedings lasted. Thirty had profession around the world was commended his Vice President responded to the invitation to vote Business as usual reflected in the UK Supreme Court and successor Amanda Millar: “If in advance. Otherwise business proceeded upholding the Court of Session in anyone can manage in the current If you remembered to register much as usual, though perhaps the prorogation case; and when circumstances, I know it’s you.” before the cutoff date, joining wasn’t elements of the President’s the Lord President addressed the Chief executive Lorna Jack difficult, though the instructions address this year were particularly International Conference on Legal said the President had shown might have looked a little offputting heartfelt. While he had known he Regulation, hosted by the Society, “incredible leadership”. to the novice videoconferencer. would have a “big job” dealing with he gave a “robust defence” of the Normally she would be telling With attendees having control of matters including the Roberton present regime in Scotland and us of the Society’s performance their own cameras (most chose report, representing the Society and why it best protects the public. against its operating plan, but to not to be visible) and microphones, profession in the UK and abroad, The Society was respected by have continued with that would the main issue was having to keep Brexit and more, John Mulholland Government as a “measured voice”. have been failing in its duty to the microphones on mute unless you said solicitors were now facing “a But it was the response to profession and its clients. It was wished to speak, otherwise noise also right to pause and reconsider and system feedback drowned out the next strategy plan, which had the business. been at an advanced stage. Much That sorted, the President Lawscot Foundation appeal had been learned about new ways requested a roll call, which took of working without the need to some 15-20 minutes. What if many COVID-19 has hit the Society’s have applied for funding, and travel; rather than slip back into more had joined? The technology education charity hard. Trustees it would be “heartbreaking” to old ways we should look for long does track who is attending, but chair Christine McLintock told the have to cut back. She appealed term benefits. perhaps it was as well to make sure AGM that with major fundraising to every solicitor to donate £10; She also reminded us of what on such a novel occasion. events like the Lex Factor Battle and the charity has launched had been achieved in the practice Business itself was uncontentious, of the Bands, and Kiltwalk, an emergency “Save, Donate, year (highlighted at Journal, May though as the advance voting postponed or cancelled, income Nominate” appeal to those saving 2020, 42), and added her own was not unanimous on the three to date this year would only money by working from home to thanks to staff and committee resolutions (approval of accounts, support three or four deserving pass on the extra cash. members for their tremendous appointment of auditors and students, rather than the hoped- See the Donate page at work, with a special tribute to practising certificate fee), a further for eight. In its three years, 169 lawscotfoundation.org.uk retiring head of Regulation, lengthy call was taken round those Phil Yelland.

40 / June 2020 MENTAL HEALTH See Me, see everyone A Society survey of attitudes on mental health in Scotland’s legal sector has resulted in a three-year action plan to target key issues

part of our Lawscot Wellbeing work, in 2019 we collaborated with See Me on a survey to give us benchmark data on the As status of mental health stigma and discrimination in the legal 24%24% are aware of profession. We have published the findings stigmatising attitudes together with a new three-year action plan which 77% actively want a better understanding towards mental health lays out how we will work with the profession to 77%of mental health problems in their organisation address the main issues. The survey, the first of its kind carried out on a sector-wide basis in Scotland, generated an excellent response. It explored themes such 24% thought line managers as attitudes and perceptions in the workplace, knew how to support staff access to training, forms of support like in relation to mental health reasonable adjustments, and assessing how effectively managers support their teams’ mental health needs. Enabling conversations will be critical to how being a lawyer can impact mental health, From the results, based on See Me’s analysis of breaking down24% the stigma. It is a concern that to building resilience in the context of career 1,242 responses, it is encouraging to find that over 24% of respondents had observed or were aware building. Three hour-long webinars are now three-quarters of respondents (77%) want to have of stigmatising attitudes to mental health, while available on our website to catch up on: a better understanding of mental health problems 23% also said they had observed or were aware see under “Recorded webinars” in the CPD to help them provide support, indicating a desire of discrimination within their own organisations. and training section of the Society’s website. for training to develop confidence and skills at all Over a third (37%) would not want to speak The action plan sets out a seven-step levels. Respondents felt training could have a major about their mental health in work for fear of the framework for how we will develop our work with impact on workplace culture, 62% citing training for reaction they would receive from colleagues, and Lawscot Wellbeing, to take a targeted approach. managers and 54% training for colleagues. 45% from fear of manager reaction; 31% felt it Our priorities include engaging with employers There is, however, a perceived gap in manager could impact their career prospects. and the wider profession to create a more open confidence and skillsets. Only a quarter of Since we launched Lawscot Wellbeing in 2018, culture, promoting mental health engagement respondents (24%) thought supervisors or we have run various events and campaigns to and awareness. We will also develop the existing line managers knew how to support staff in ensure mental health remains at the top of our resources in Lawscot Wellbeing to provide a one- relation to mental health and wellbeing; 39% agenda. The interest in our events during Mental stop shop for anyone looking for information and believed line managers understood and adopted Health Awareness Week 2020 is testament support for themselves or others. reasonable adjustment. See Me have indicated to to the legal profession taking an active role in Working in law can be stressful: long hours us that improvement in this area would make the developing their knowledge of key issues. We ran and a heavy workload can take a toll on both biggest difference to workplace culture. various sessions in collaboration with Clio, from physical and mental health. The survey findings Another main area of focus is having emphasise the need to drive change – and, while conversations around mental health, including our current circumstances could never have what is needed to maintain good mental health been predicted when we launched the survey, as well as being able to disclose conditions at About the survey it is potentially even more important in light of work. Despite growing awareness, the survey the challenges COVID-19 presents for all of us. highlights the need for further work to ensure Open during May and June 2019, the online Our action plan commits us to tackling that solicitors and others in the sector feel survey sought to gather attitudes and stigma and discrimination in the profession, to comfortable in raising issues about their mental perceptions of solicitors, trainees, paralegals, changing workplace culture, promoting open health or discussing reasonable adjustments. legal technicians and all support staff conversation and providing the right support. In The survey found that: working in practice units and in-house legal three years, we will conduct a further survey to • 47% felt confident about holding a conversation teams regarding mental health stigma and monitor progress, with the long term objective of about reasonable adjustments; discrimination within the sector. See Me, ensuring that everyone working in the sector can • 46% believed opportunities for staff to have Scotland’s programme to end mental health speak out about how they are feeling and seek open and honest conversations about mental stigma and discrimination, gathered and support without worrying about potential stigma health would create a more positive attitude; analysed the anonymous data. The full report or discrimination at work. • 39% of respondents felt senior leaders in their is available on the Society’s website at organisation showed their commitment to staff bit.ly/LSSmentalhealth. Olivia Moore, careers development officer, mental health. Law Society of Scotland

June 2020 \ 41 In practice

TRAINEESHIPS Listening to trainee voices: COVID-19 concerns The COVID-19 shutdown may be especially difficult for trainees, who need work allocated and supervised, and are probably worried about career prospects. Olivia Moore has been hearing their concerns and offers some suggestions for employers

ver the last few This may be true, but trainee weeks I have recruitment is stressful in normal been holding circumstances. Students spend several round years jumping through a matrix O table events with of hoops including extracurricular present and activities, high grades, volunteering, future trainees, many on furlough, legal experience and full and part to answer questions, hear their time jobs to get a coveted role concerns and offer support. in a competitive market. The Adapting to working from home uncertainty caused by coronavirus or other new practices is touching adds to an already big challenge. everyone in the legal profession, but at the outset of their careers How can employers help? and working under supervision, For a long time to come, coronavirus some impacts are felt particularly will be evidenced on CVs and strongly by trainees. applications. Where people can’t Below I have laid out three secure the legal work they want, common concerns that have been we’re encouraging students, trainees raised and offer a context to why a traineeship needing to find they’ll fill the information void and NQs to be proactive and take they are relevant to so many another role. In a busy marketplace, with worries and concerns. opportunities to stay in employment, trainees, and what employers they worry about being overlooked gain transferable skills to complement could do to help. as candidates who now have a CV Career prospects technical legal skills, volunteer, that looks more complicated to Concerns about employability are undertake relevant CPD and keep a Unemployment a prospective employer. shared by many current and future close eye on securing a future role. It’s clear that regardless of how far trainees. For those on furlough, In turn, employers should be more through training they are, many How can employers help? missing seats and losing valuable open to non-linear career paths, trainees are feeling vulnerable in Communicating with current, experience is a key concern. For contract work, or people looking to terms of job security. The two- future and furloughed trainees future trainees, most internship transition into different areas of law. year training period is, in the end, is the critical part that employers opportunities have dried up, Perhaps this is a great opportunity a fixed term contract. The end of need to make sure they’re getting alongside many other employment for recruitment to become a bit that contract is usually a source right. Particularly when thinking opportunities. There is a concern more flexible and see people given of excitement for trainees who are about trainee concerns around among students that they’ll become breathing space to try out different ready to move into qualified roles. redundancy or unemployment, an overlooked cohort, with the usual things in their early careers. However, in a turbulent and possibly there are a lot of Chinese whispers experience missing from their CV, suppressed jobs market, trainees are out there, and transparency helps or grades that are not a fair Supervision viewing their qualification date with slow down the rumour mill. reflection of what they might have A lot of trainees have talked about increasing trepidation. While it might be counterintuitive, achieved in normal circumstances. the challenges of supervision Withheld or rescinded NQ the more employers can keep Some people may read this and from a distance, with so many job offers could leave people colleagues updated with think that so many concerns about working from home. Many are at risk of unemployment, leaving information the better. People career prospects among students or finding it particularly hard to ask some trainees worrying about aren’t going to assume everything trainees are unwarranted. After all, questions they need to, or get the immediate financial strain must be fine if they don’t hear from careers are long and there’s plenty feedback or access to work in the that would pose, or the potential colleagues and leadership; likely, of time to forge a path. first place. A trainee described how impacts on future progression. they had completed a draft of a Many trainees are concerned “Simple changes around communication document and submitted it to their their qualification dates may be supervisor, which was then edited extended. Others, particularly those can make a big impact, whether that’s and submitted by someone else on furlough, are concerned they’re scheduling regular calls or establishing with no feedback to the trainee. at greater risk of redundancy and The trainee independently went finding themselves midway through a clear system for receiving feedback.” into the work file store to track

42 / June 2020 down the final version and compare it to their draft to find out what had EILDH CONACHER been changed. This isn’t a good example of proactive supervision. First year (second seat) trainee at a large full-service firm It’s arguably easier for more seasoned trainees who are more I’m a first year trainee, at the for my career. I was eager to is no substitute for the practical confident completing tasks, with time of writing in my sixth week begin my traineeship, having education the traineeship offers. their supervisor simply checking of furlough. When the UK went waited almost two years since I have tried to maintain a routine. and approving their work. Trainees into lockdown, I had been in my securing my position. When I This has included a daily workout, who had just moved to a new seat second seat for just two weeks. was first placed on furlough, trying new recipes, and reading at the start of lockdown have also In the run-up to lockdown, I was certain it would books that have been on spoken of finding it difficult to my firm was brilliant at mean extending my the shelf for longer access work or communicate with communicating our changing traineeship. I now than I care to admit. colleagues, without an established processes and how this would understand this For me, exercise rapport and comfortable affect individuals as we adapted may not be the and routine have relationships with a new team. to working from home. I’m not case (though proven the most sure anything could have truly it remains a effective ways How can employers help? prepared any of us for this time. possibility). to reduce the Small, simple changes around The most difficult part of My time on anxiety I feel. communication can make a big this experience has been the furlough has been Since being impact, whether that’s scheduling uncertainty and powerlessness spent looking over old on furlough, I’ve been regular calls or establishing a clear I have felt. I’ve always had university notes, scouring the well supported by my team system for trainees getting access some semblance of control over internet for free online CPD and and I continue to feel like a to work and receiving feedback. my legal career: planning and reading through my supervisor’s valued member of the firm. Employers need to look at how executing coursework, attending STEP notes (kindly lent to me). I have been in touch via weekly supervision works at a distance law fairs and networking events. I constantly worry that I’m not videoconferencing meetings and as more than a short term issue. This pandemic has, however, doing enough to keep my legal the HR team have reached out With speculation about how social taken my agency away. I’ve knowledge up to standard and to ensure all trainees are OK. My distancing might remain for many struggled with the uncertainty that my learning has been firm has focused on my wellbeing months to come, trainees could the COVID-19 crisis has created compromised; after all, there above all else in this difficult time. end up doing a significant portion of their traineeship working from home. If employers haven’t already, they need to think seriously DIONNE BRADY about how they are maintaining Second year trainee supervision, starting from ensuring trainees have access to the I am currently a second year about as much as I am allowed take at first, as we discussed the hardware they need to do their jobs, trainee, due to qualify at the really help my mental health. possibility of there being hardly to receiving detailed feedback on beginning of August. I’ve been staying in touch with any NQ jobs this year, I felt better meeting the PEAT2 outcomes. I haven’t had any advice from friends and family and helping knowing that I am doing what The legal profession is having my employer as to how I should them in any way I can. I also I can to prepare for that scenario. to wait and see how the landscape spend my time; however, they did a fundraiser for a domestic There is no better time to do it will have shifted in the next few have reassured me they abuse charity called Refuge, since I have so much time on months due to coronavirus, and are doing everything raising over £270 by my hands! while some actions could be taken they can to ensure doing 100 squats Another concern is that I’ve now, others will come much further I will complete a day for 30 days. missed out on many weeks of down the track. my traineeship, This gave me training and court appearances At the Law Society of Scotland, and there is also something to that I am always learning from. we will continue to engage with a good chance focus on and took I worry that I’m going to be terrible trainees to capture and answer as of being kept on my mind off the at my job if and when I do return, many questions as possible, then as a NQ solicitor, fact I’m not working and will have forgotten everything! work proactively to continue to give which are the two at the moment. Although that sounds a bit far career support, deliver relevant main issues I was really Although I have some fetched, I’ve never been out of events, assist supervisors and training concerned about when I was level of certainty that I will work so it’s a strange feeling. managers and enable trainees’ voices furloughed on 30 March. be offered a job in August, I have I guess I just have to carry to be heard. The legal profession is I am a very active person, tried to be proactive in updating on, think positively and prepare extremely collegiate; hopefully all and while it was difficult getting my CV to reflect the work I have as much as I can for the future. employers know this is the time for into a different routine at the done as a trainee. I connected I do find that talking to people compassionate leadership and an beginning, I feel like I’m doing with a legal recruiter and helps if I am feeling low, whether empathetic approach. even better fitness-wise than I participated in a video call along that be friends, family, other did in my old routine. I find that with other trainees in the same trainees I know or reaching out Olivia Moore is careers development exercise and getting out and boat. Although it was hard to to people on LinkedIn. officer at the Law Society of Scotland

June 2020 \ 43 In practice

TRAINEESHIPS

Setting out in crime Traineeships are likely to be hard to find this year, but that is nothing new for those seeking to practise criminal law. Matthew McGovern suggests some ways to maximise your chances in that sector

here is no doubt are very few criminal traineeships market pressures: the increase in Where to start that there are advertised. The purpose of this legal aid fees last year was the first Your hunt for a criminal traineeship significant article is to give you a couple of in my lifetime! This is coupled with should begin long before the problems with the tips and pointers about looking for a significant reduction in criminal traineeship is advertised. You should T criminal legal aid a criminal traineeship, and how you prosecutions, which will only be contact a local criminal defence firm sector. My local can put yourself in the best possible exacerbated by the current pandemic. and enquire about work experience. court is Hamilton, which is one of opportunity of scaling the legal Notwithstanding these problems, This can involve either shadowing the busiest sheriff courts in equivalent of Everest: securing there is a seemingly neverending a solicitor at court or – even better Scotland, and yet there are only such a traineeship. battery of legislative reforms placing – helping out in the office, which two full-time criminal lawyers under increasingly unrealistic demands could mean everything from drafting the age of 30. There is one full-time The criminal market on criminal lawyers, who are legal aid applications and court criminal trainee in Lanarkshire. Unlike bigger commercial firms, expected to do even more for documents to answering the phone Now I could write a book on most criminal firms are small ever diminishing returns. and filing. While this might sound the reasons why there are so few businesses without HR or marketing The financial pressures on mundane, good administration criminal lawyers who would be departments. We don’t have criminal firms are considerable, and skills as well as a willingness to eligible to join the Scottish Young an annual recruitment drive for everyone in the firm – from senior multi-task and help out with the less Lawyers’ Association (students, summer placements or traineeships. partner to receptionist – has to glamorous tasks are essential in a trainees, devils, solicitors and When criminal traineeships are punch above their weight for the small high street firm. advocates with less than 10 years’ advertised, it is really important business to be viable. Criminal firms are usually in need experience), but that is for another that you know the market you are While this might sound like a of this type of help, and I think it day. The one reason that I can rule wanting to enter. challenge, it is also an opportunity for would be much more effective to out is that young lawyers don’t Criminal law firms face unique law students seeking a traineeship. target firms as a student and ask for want to practise criminal defence. work experience during university There are plenty of law students than send speculative letters out who dream of being the next to law firms when you are on the Martha Costello, or who have “You should spend as much time as diploma (sorry to say, but these are watched A Few Good Men and possible at your local sheriff court as very rarely considered by solicitors, think they could have their “You and in my firm our secretary knows can’t handle the truth” moment in it will allow you to gain an insight into to send a polite reply saying thanks court. The problem is that there the advocacy side of the job” but we aren’t hiring just now).

44 / June 2020 Another way to gain experience Whilst this was an arduous task, in criminal law is to attend CPD our website has become a good events (why not start with SYLA’s source of business, and every new ASK ASH Criminal Law Day later this year?), case that comes from the website where you can meet solicitors and highlights its value. It is something gain an insight into their jobs as that I have found many experienced Am I invisible? well as network with members practitioners are reluctant to invest of the profession. in, as they feel it is too expensive Hidden away, working from home, You should also spend as much and is outside their comfort zone. I feel nervous about my future time as possible at your local sheriff If you are able to assist with court, as it will allow you to gain building a website for the firm, Dear Ash, the work is clearly still flowing an insight into the advocacy side and it gets a case a week from the The lockdown has resulted in through to you and this will be of the job. It is another excellent website, the financial burden of less interaction in my role with clear to management too. opportunity to network with employing a trainee doesn’t seem colleagues, and this is making Nevertheless, it is important that lawyers, and it gives you an “in” if that daunting for criminal firms. me nervous about my future. you are able to talk through any you are asking for work experience. This is just one example, but Although I have been working concerns with your line manager Twitter is an excellent platform demonstrating commercial awareness really hard and putting in the and to get some reassurance for aspiring criminal lawyers. and business development skills is expected hours, I am concerned for your own piece of mind. You can follow and interact with invaluable to any criminal law firm. that I may essentially be hidden The current crisis has already some of the country’s best known Whilst commercial awareness means away and not as visible to senior caused much instability for lawyers and Queen’s Counsel as something different when applying management; and I’m concerned many people; however, on the well as organisations such as SYLA for a commercial traineeship rather that this will result in my being upside you seem to be one of (we tweet at @oSYLAo). You’ll than a criminal traineeship, it is no potentially earmarked for future the fortunate ones who still have gain an insight into the working of less important, and arguably more so. redundancy. I experienced a form of income and the ability criminal law, as well as experienced redundancy through the to work from home. professionals’ opinions about the Finally… previous financial Try to stay positive latest proposed legislative reform. If you have a criminal traineeship crisis and this is for now and focus A good example of this recently interview, you’ll be asked why you therefore making on what you do was the proposed suspension want to do the job. I appreciate me even more have control of jury trials in response to the members of the profession are nervous and over – i.e. make lockdown and the Government’s never particularly enthusiastic anxious, but I’m sure you meet social distancing measures. Within about young law students wanting not sure how to work deadlines minutes of this reform being to pursue a career in criminal law, deal with these and continue to published, leading criminal lawyers and there’s no getting anyway feelings. take pride in your were tweeting their opposition to from the downsides, but – to end work. You could also the proposal as well as suggesting on a positive – it is an incredibly Ash replies: look to join some social Zoom alternatives. To his credit, the rewarding job. You are often thrown The lockdown is resulting in meetings in order to allow you Cabinet Secretary for Justice, into the deep end with court work much widespread anxiety about to interact with others and to Humza Yousaf, engaged with a and I’ve always enjoyed that current and indeed future issues, feel more visible and share number of lawyers and ultimately challenge. It is a great feeling when especially in regard to financial concerns. There is uncertainty this proposal was paused, and you persuade the sheriff to grant matters. Therefore you are not for everyone at the moment, a new working group has been bail to the client who expected to alone in feeling this way. Your but there will be light at the convened to explore alternatives. be remanded, or when you get your previous experience is most end of the tunnel – we all just first not guilty verdict, and – at the likely just heightening your have to continue to be patient What can set you risk of sounding sanctimonious fears, which is understandable and strong. Try to take steps to apart from the pack – you play an invaluable role in the circumstances. improve your mental health: for I mentioned the pressures that representing some of the most However, you are still attending example, go for a walk or talk criminal lawyers work under, and vulnerable people in our society. to your work obligations and to friends; but most of all try the importance of being able to I’ll not pretend it isn’t tough, but are being kept busy; therefore not to worry. Keep safe. punch above your I don’t have any regrets weight. One area where about specialising potential trainees could in criminal law and Send your queries to Ash make a difference is the I would happily internet. Many criminal recommend it to any “Ash” is a solicitor who is willing to answer work-related queries firms don’t have a aspiring lawyer. from solicitors and other legal professionals, which can be put to website and you could her via the editor: [email protected], or mail to offer to create one for Suite 6b, 1 Carmichael Place, Edinburgh EH6 5PH. Confidence will be your firm. As a trainee, SYLA is currently respected and any advice published will be anonymised. Matthew McGovern Please note that letters to Ash are not received at the Law Society I was heavily involved is solicitor with publishing a series of Scotland. The Society offers a support service for trainees through in the production of McGovern Reid and of blogs from the our firm’s website a committee member committee which its Education, Training & Qualifications team. Email legaleduc@ and ended up writing of the Scottish Young can be found at lawscot.org.uk or phone 0131 226 7411 (select option 3). Lawyers’ Association most of the content. www.syla.co.uk/blog

June 2020 \ 45 In practice

RISK MANAGEMENT When home is not your castle On behalf of Lockton, Alan Eadie and Jamie Robb of BTO consider some risk management issues created by the current working from home regime

It’s a dangerous their ID. How do you verify identity? although it has to be borne in mind would be likely to find it difficult to business, Frodo, going The rules requiring sight of the that this only establishes that intercept such communications. “ out of your door…” client’s original ID are unwavering, someone of a given identity exists 4. Finally, you would then request These prophetic words yet in a world where meeting and not necessarily that you are that the client does follow this up of Bilbo Baggins have clients still seems some way away, dealing with that person. by providing a sight of their original formed the bedrock of SAGE’s advice trying to match the ID to the client documents in the normal way at a over the lockdown, and form the is not as simple as previously; Further steps later stage of the transaction but, rationale for the majority of the UK and what is to be gained by Further steps you might therefore as long as other risk factors do not workforce working from home. seeing original client ID against a wish to consider would be: raise concerns, you may be able to Working from home has its background where (a) we have not 1. Ask the client to send you a copy of take the view that you are able to at advantages: lower transport costs physically met the client, and (b) their ID documents – ideally a scan/ least start working on the matter, on (from bedroom to desk), better we have no easy means of verifying pdf, but possibly a photo – via their the strength of this process. work-life balance, and spending that the ID itself is authentic? phone. Having received the copy, Bear in mind also that any deviation more time with family. It also has The good news is that alternative you could ask them to hold up the from your normal CDD practice disadvantages: higher snack intake, ways of satisfying the customer documents during a videoconference while the current restrictions apply, devoting endless hours to curating due (“CDD”) and money call with their face also in vision (and may be best discussed and signed videoconference backgrounds that laundering requirements should be try to keep a record of that). off by a supervising partner or your showcase your cool credentials, and possible in most cases. As always, 2. You should then undertake an MLRO, on a case by case basis. spending more time with family. much depends on the risks of each e-verification check of the document Also, the Law Society of Scotland For a profession which, situation and whether those can and the details contained on it. has issued practice updates in historically, has not been the fastest be sufficiently addressed through Systems which draw on multiple relation to client verification and to embrace change, the move to other means, but it is also worth data sources (including official you should continue to refer to its homeworking came as something remembering that there are three sources) are to be preferred, website on these matters. of a shock. The old normal was stages to CDD: identification of especially where physical ID not a suitable model for working the client (information gathering), checks are impossible or have their Remitting funds etc in a socially and professionally risk assessment of the client, and limitations. A single source (e.g. You hold client funds. They need to distant world, and adaptations are verification of the client (evidence the electoral register) would not be sent to another firm of solicitors. necessary. With change come new gathering). If you cannot meet the normally be sufficient in itself. You cannot send a letter with bank opportunities, but also new risks. client face to face, this may affect 3. If that check produces no account details. The only option your risk assessment and may concerns, a final cross check might (short of secure online client Client verification simply mean having to exercise be to make a point of sending a portals) is to request an email with Of a Tuesday afternoon, whilst more rigour and more caution at the letter to the client (without advance the details. The receiving solicitor leafing through the latest Journal, third stage, verifying identity, than if warning) at their given address, with duly obliges and emails you their a phone call comes through. A new you had met them face to face. the letter requiring some unique or account details. You require to client. He has a deal which needs In some instances, e-verification specific form of acknowledgment confirm independently that the to complete. You take all the details in its own right may be sufficient, to be sent back to you. A fraudster bank details are correct and have and, over the next few days, start not been intercepted. You pick the process of opening a file. Then it up the phone and start to dial hits you: just who is the client? the firm’s main office number. No He told you his name was Connor good – the office is closed. You MacGregor, but how do you know if “In a time of uncertainty, the need call the number on the email and it was actually Connor MacGregor, for vigilance and security is paramount, the person on the other end gives and just who is Connor MacGregor? you the number of their office or You can’t meet face to face, and you not only to protect your clients, but cashroom manager with whom to can’t readily get the originals of also yourselves” check. Don’t be fooled – if the email

46 / June 2020 will be to revisit that trusty old friend, the letter of engagement. Don’t assume that your existing letter of engagement will come to your rescue in the changing environment in which we are now operating and, if you do wish to be able to resort to or rely on any of the measures outlined above, be sure that your letter of engagement is reviewed and updated to cater for them. Getting the client’s agreement from the outset is key. If there is a take home from all of this (or rather a keep home, since you’ll be there already), it is this: 1. Verify, verify, verify – a voice at the end of a phone, the person typing you an email, could be anyone. 2. Let clients decide whether, and to what extent, they are content to use methods of communication beyond the usual. 3. Wherever possible and appropriate, get paid upfront. 4. Keep your clients informed of any changes in practice you are making, and any security or other risks they may present. has been compromised, you could will mean relying on third party Protecting cash flow 5. Be sure to issue fresh letters of just be calling the hacker and being software. The problem with this Cash is king and remains the engagement where appropriate, to directed to their accomplice. is that the security measures for lifeblood of any business; all the reflect any new measures you wish So how do you independently those systems are managed by more so where everyone’s purse to introduce. confirm that the details you third parties. There have already strings are being tightly drawn Whether the current state of received are legitimate? been news articles raising concern and there may be more reluctance affairs is temporary, or whether Options might include contacting about the security of some of than ever to extend credit to client some adaptations will survive going other personnel in the firm, these systems. In the event that organisations fighting for their own forward, remains to be seen. What separately and without advance something does go wrong, there is business survival. is important is that in the “here and warning, to seek confirmation of likely little recourse against those Similarly, at a time when bad now”, thought should be given to the firm’s bank account details. The companies. Make no mistake, if a debts are on the rise and debt the new risks that remote working important thing is to be careful and security or data breach does occur, collection actions are likely to brings. In a time of uncertainty, the think about whether you really the client’s first stop will be your progress through the courts with need for vigilance and security is are – as you must do – obtaining firm, followed by the ICO, SLCC and/ all the haste of a lethargic garden paramount, not only to protect your confirmation of bank details from or Master Policy insurers. snail, this is not the time to allow clients, but also yourselves. at least two independent sources. Was it reasonable for you to large amounts of work in progress Always bear in mind that sending arrange a conference call through to accumulate over the course Update client money to an unauthorised those systems? What if there were of a transaction. Since preparing the above article recipient is usually the start of a reports that they were vulnerable Measures to protect and preserve the Coronavirus (Scotland) (No 2) professional negligence claim from to hacking? And what if you didn’t cash flow might be (i) more often Act 2020 has come into effect (from which there is seldom any defence. tell your client who, had they requiring a retainer at the start of a 26 May 2020). The Act introduces This also stretches beyond known of the risk, would have transaction, (ii) indicating an intention a number of important changes to monetary considerations; whether preferred a phone call? These are to render regular interim fees, or (iii) the signing and use of electronic you are dealing with a client or the potential questions which you reserving the right to deduct fees documents. Of particular note is another solicitor, it is imperative that might need to answer in the event from settlement sums before any part 7 of the Act, which enables you take all appropriate steps to of a security breach. balance is remitted to the client. notaries to make affirmations or ensure client data remain secure. That said, videoconferencing If the client balks at these options, declarations without being in the is proving a very useful ask yourself why; and whether it is same room as the person from Conference calls communication medium in the still worth taking on the work. whom the oath is being taken. As the majority of client interaction current situation and has a real part moves online, the risk of to play in client verification, to say The solution Alan Eadie is a partner, and eavesdropping, or worse, increases. nothing of relationship management The easiest way of catering for any Jamie Robb an associate, For most firms, videoconferencing with your clients. new risk management measures with BTO solicitors

June 2020 \ 47 WORD OF GOLD Home advantage Profit, like charity, begins at home – by nurturing existing clients, says Stephen Gold

aw firms always say that the same amount of new revenue from existing existing clients are their best clients and we are just doing our job. It is not source of new business, but rational to behave like this, but hunting gives a L more often than not put most bigger rush than farming: the thrill of the chase, of their business development the allure of the shiny and new, the adrenaline efforts into winning new clients. of pitting our wits against the competition. Sales and marketing are speculative, non- Cultivating more profit from the clients we chargeable and costly. It therefore matters a have requires different qualities: perseverance, great deal that they are directed to where there empathy, patience, while delivering consistent is the best chance of a return. The people we excellence in the work we already do. already know, whose needs we understand, who Firms need new clients to grow and provide are pleased with our service, who trust and like fresh challenges, but in deciding where to us, will always offer the best growth prospects. commit our precious resources, we should be Yet creating such a bank of willing clients takes clear-eyed about the task. Incumbency is a great much thought and effort. Being qualified to advantage. Instructing a new law firm involves do the work is a ticket to the game, but rarely risk, and the investment of substantial time and sufficient to win. effort to make the relationship work. Experience shows that businesses are wide open to culling Business: it’s always personal their legal panels, and squeezing better terms Successful firms create a thoughtful rolling from them, but are mindful of Hilaire Belloc’s programme to strengthen ties and put dictum: “Always keep a hold of nurse, for fear themselves in pole position for new opportunities. of finding something worse.” High on the agenda will be regular conversations When clients do move, often it is because between the firm’s senior people and the client’s they feel the relationship has gone stale, decision-makers, checking out that the relationship service has dropped off, or they have been is in good shape. Are service improvements taken for granted. The current crisis only possible? Is the firm responsive and accessible? “Creating a bank emphasises how important it is strategically Are its communications clear and user-friendly? to cultivate the flowers in our own back yard, Are there any rumblings of discontent? of willing clients takes for defensive as well as expansionist reasons. If clients use different firms for different work, much thought and effort. Clients will remember how supportive or one should ask why, and listen reflectively to the otherwise their lawyers have been. On the plus answers. It is remarkable how often clients do Being qualified to side for incumbents, they will be even more not use a firm only because they are not aware do the work is a ticket risk-averse when it comes to change, and it is of all the services it offers. Do not be afraid to ask currently a lot harder for aspiring new entrants the question: “What would it take to win all your to the game, but rarely to physically get in front of them. Pitching by work?” Whatever the reply, at the very least it sufficient to win” Zoom is likely to be a deathly experience. But will be instructive. these advantages can easily be squandered by Firms may be nervous about appearing vulture- complacency or carelessness. like, always looking to have sales conversations, times, consider whether it’s possible to have a Joni Mitchell had it right: “Don’t it always but this is not the point. These occasions are smarter fee structure, or increase rates. Subject seem to go, that you don’t know what you’ve for clients to talk about what’s going on in their to maintaining quality, can work be done more got till it’s gone?” Thus with our most precious world, their ambitions and fears, business and efficiently at less cost? Is there potential for more relationships, and for now, much of life. personal. Go into them primed to listen more than accurate scoping, better processes, or leveraging talk, and you will find that relations strengthen more junior people? All over the place, partners and opportunities arise organically. They are anxious to appear busy will be hanging on to the route to personal rapport, the glue that work that could and should be delegated. Stephen Gold was the founder and senior partner binds relationships more tightly than expertise. of Golds, a multi-award-winning law firm which Competence alone never creates enduring loyalty. The thrill of the chase grew from a sole practice to become a UK leader in Clients need to like us, feel that we share common It is worth asking why the search for new clients its sectors. He is now a consultant, non-exec and values, enjoy the experience of dealing with us, so often has priority over making more of those trusted adviser to leading firms nationwide and and being in our company. already inside the tent. When a new client is internationally. e: [email protected]; Making more profit means more than just brought in, bells ring, backs are slapped (subject t: 07968 484232; w: www.stephengold.co.uk; doing more work. Despite these straitened to social distancing) and corks pop. Generate twitter: @thewordofgold

48 / June 2020 APPRECIATION Liz Wilson, LLB, NP, MAR 16 November 1946 – 21 April 2020

lizabeth May She also gained awards in food Wilson was hygiene, anatomy, physiology one of and health at Perth College, and Scotland’s trained in drystone dyking – which E youngest she loved and achieved good solicitors, a proficiency in, as a member of tribunal chair a charitable trust doing projects and university tutor, before a in Angus, Fife and Perthshire. remarkable career addition saw her Liz was a good tennis and golf become a professional reflexologist. player and, during many summers, She was born in London to sailed in 60ft traditional wooden Scottish parents and raised boats as part of the voyage crew and educated in Wishaw, North on the west coast to the Hebrides Lanarkshire. An outstanding pupil and St Kilda. at Wishaw High, Liz gained her Other passions included the LLB degree at the University of natural world (and mountains in Glasgow in 1966, aged just 19 – particular), photography, seabirds and too young to be a practising and drumming. lawyer. She then spent a year out in She became a professional America, albeit studying sociology, reflexologist in Dundee from 1992 psychology, politics and philosophy to 2016. At the same time she at DePaul University, Chicago. was a legal panel member of the On her return, she became appeals service, and also a tutor at a law apprentice with Glasgow the University of Dundee for three Corporation and at long last was years in solicitor-client relationships able to enrol formally as a solicitor and professional ethics. in October 1969. She joined H W As a Buddhist, Liz visited Nepal Nimmo & Co in Wishaw before to see projects to build schools, setting up her own business, then hospitals and temples in remote amalgamating with another Wishaw of Scotland registrar, wrote: “I do proved calming during sensitive and areas after making a millennium practice in 1973. thank you most sincerely for your fraught hearings. commitment to raise money for the Further roles followed in the membership of the Law Society for One appraisal found: “Liz attempts Stupa Project for World Peace. She public sector as senior legal over 46 years. This is a remarkable to make the tribunal process as furthered the peace project set up assistant and depute clerk of achievement and one, which I hope, positive an experience as possible by Samye Ling Monastery in the court for Perth Town Council, gives you great pride.” for those involved. She made good Scottish Borders with a one-month and as Perth & Kinross District Liz was a part-time Appeal use of humour at this hearing. pilgrimage in Tibet. She was also Council’s depute director of law Tribunals chair for almost 10 The humour was appropriate and a celebrant at the monastery, and administration with special years, covering child support, lightened the process… and [all officiating at weddings. responsibility for housing and social security and medical law. parties] were so satisfied with the Her last days at Bridge View public health. On resigning, the Department for fairness of the hearing they shook House Nursing Home in Dundee From 1983 to 1993, she and her Constitutional Affairs thanked her hands with the panel on leaving.” were striking. In accordance with great friend Fiona E Raitt were for “the benefit of your experience When she retired from the Tibetan Buddhist practice, Liz founding partners of Dundee law and work on the tribunal since 1993. Mental Health Tribunal in 2016, was wrapped in a mandala – a firm Wilson & Raitt, where they Your dedication to duty and your aged 69, President Dr Joseph prayer blanket – before cremation. made their marks in sheriff court courtesy will be missed”. Morrow QC wrote: “You will Manager nurse Heather Allison circles. The caseload revolved She was appointed a panel be greatly missed and your crocheted one, with every member around family breakdowns, member of the Mental Health contribution has been appreciated of staff adding a stitch. Some children’s hearings and domestic Tribunal for Scotland in 2004, by many including myself.” members, including Joe the violence. Between 1985 and 1990, where she was popular with her Although working full time, Liz handyman, had to be taught how she was appointed a safeguarder to medical colleagues on panels. continued her education throughout to crochet. represent children at panel hearings Her style was described as “quiet, her life – studying business She is survived by five brothers and at Dundee Sheriff Court. effective and commanding”. management at the University of and one sister. When illness forced her to “retire” However, her sense of humour Strathclyde and taxation at Glasgow in 2016, David Cullen, Law Society was frequently on display, which College of Technology. Iain Wilson

June 2020 \ 49 AD TYPE: LINAGEAD TYPE: LINAGE CLIENT: BRODIESCLIENT: MHD

To advertise here, contact Elliot Whitehead on 0131 561 0021; Classifieds [email protected]

Alexander Welsh Thomas Clephan McIver (Deceased) – Would anyone (Deceased) – Would anyone holding or having knowledge holding or having knowledge of a Will by Alexander Welsh, of a Will by the late Mr 74 Calder Tower, St Leonards, Thomas Clephan McIver of East Kilbride G74 2HL who 30 Southhouse Avenue, died on 5 April 2020 please Edinburgh, EH17 8ED who contact Claire Scott at Brodies died on 1 November 2019, LLP, 15 Atholl Crescent, please contact Chris Benson Edinburgh on claire.scott@ at MHD Law LLP, 45 Queen brodies.com or 0131 656 0251 Charlotte Street, Edinburgh, EH6 7HT (Tel No 0131 555 0616 or chris. [email protected]). TO REPLY TO A BOX NUMBER Please respond to Box Number adverts by email only: journalenquiries@ connectcommunications.co.uk (Please include the box number in your message) Eadie Corporate Solutions Ltd Former senior police officers with over 30 years experience, providing assistance to the legal profession in: • Genealogy research • Tracing investigations • Litigation assistance TO ADVERTISE Competitive hourly rates for the highest quality of work. HERE,Linage CONTACT Linage 91 New Street, Musselburgh, East Lothian EH21 6DG 11 LinesElliot @Whitehead £25 per line14 Lines @ £25 per line Telephone: 0131 6532716 Mobile: 07913060908 Web: Eadiecs.co.uk Email: [email protected] on= 0131£275 561 + 0021VAT = £350 + VAT [email protected]

PRACTICE REQUIRED READY TO RETIRE? SUCCESSION PLANNING ISSUE? WANT A SAFE PAIR OF HANDS? HIGHLY TALENTED AND BUSINESS ORIENTED LAWYER SEEKS APPROPRIATE CHALLENGE GEOGRAPHICAL LOCATION UNIMPORTANT PRACTICE POTENTIAL – FUNDAMENTAL AD TYPE:TELL ME ALLSIZE ABOUT 2 YOUR “UNPOLISHED GEM” CLIENT:RESPOND WITHDPB ABSOLUTE CONFIDENTIALITY In writing to: BOX No. 2128 Email: [email protected] Tel: 07970 050 050

DPB Tracing Services Ltd Trace & Employment Status Reports

Tracing agents to the legal profession. Based in South Lanarkshire Tracing Services available - Beneficiaries, Family Law, Debt Recovery tracing, Missing Persons, Landlord/ tenant tracing, Employment tracing. No trace, no fee. 93% success rate. Quick turnaround time. Contact Douglas Bryden [email protected] or visit www.dpbtracing.co.uk

50 / June 2020