Group proceedings: “Breathing space”: a cure Cross-border maintenance: the new Scottish regime for contracts hit by COVID? the differences explained P.16 P.20 P.28

Journal of the of Volume 65 Number 8 – August 2020

Staying remote? Has lockdown working changed how regard their offices? The Journal reports as reopening beckons

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Publishers Editor The 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]

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Online resources Which current bill before the Scottish Perhaps our MSPs’ time would be www.lawscot.org.uk Parliament has generated the most heat better spent attempting to mitigate the www.journalonline.co.uk in public debate? Nothing to do with many hardships that seem destined to www.lawscotjobs.co.uk the pandemic emergency, or even the result from the coronavirus lockdown and Subscriptions independence debate, but hate crime. its after-effects on the economy. Some Practising Certificate (inclusive cost) £680; The bill based on Lord Bracadale’s debt advisers, for example, regularly voice Non-Practising Members (UK and Overseas, report, supposedly largely a consolidating warnings that debtor support is in a poorer inclusive cost) £315; Annual subscription UK £84; measure, finds itself at the centre of a storm state now than 10 or 15 years ago. That Overseas £108; Trainees Free into which virtually every commentator should be cause for serious concern. Editorial seems to have felt obliged to pitch their And what about those worried for Connect Publications (Scotland) Ltd criticisms, alongside interests ranging from their own homes? Into the mix here we Editor: Peter Nicholson: 0131 561 0028 bishops to secularists to the police. have the Holyrood Local Government e: [email protected] Some of the comments have Committee’s decision to drop the Fair Advertising: Elliot Whitehead: 0131 561 0021 been remarkable (is there really Rents (Scotland) Bill from its e: [email protected] a serious argument that programme, claiming excessive Review editor: David J Dickson of the Bible could workload. Taken in private Online legal news: become an offence?), but session after this member’s e: [email protected] the Society and the Faculty bill had been referred to the Other Connect Publications contacts, of have each committee for scrutiny, it telephone 0141 561 0300 presented substantial and goes against the principles Head of design: James Cargill (0141 561 3030) considered responses to the of accountability that are [email protected] committee scrutinising the bill, supposed to govern the way the Editorial board making some weighty points about Parliament conducts itself. Austin Lafferty, Lafferty Law lack of clarity of the proposed offences, not Whether the bill, which has wider Andrew Todd, Springfield Properties Plc least where the bill happens to depart from relevance than COVID-19 related problems, Philip Hannay, Cloch Solicitors Lord Bracadale’s proposals is the best way to address the serious David Bryson, Baillie Gifford Ayla Iridag, Clyde & Co Faculty goes so far as to conclude that issue of private rented sector costs is Kate Gillies, LLP ministers should “reconsider” the bill – something that should be debated openly which, given that its main purpose is to in the chamber, not annulled by the private restate existing law, should not be lightly decision of a handful of MSPs. dismissed. If the bill does proceed, it can be There are many worthy topics for expected to take up much parliamentary legislation, but at times of national time before it is passed. The same may emergency such as this, our Parliament Disclaimer be true of the well intended incorporation would improve its public standing if it The views expressed in the Journal of the Law Society of Scotland are those of invited contributors of the United Nations Children’s Rights cleared its decks in order to prioritise and not necessarily those of the Law Society of Convention, a bill still to be introduced. Are devoting as much time as possible to Scotland. The Law Society of Scotland does not endorse any goods or services advertised, nor any these the best use of the now limited time alleviating the effects of lockdown and claims or representations made in any advertisement, in the Journal and accepts no liability to any person remaining before next May’s election? recession on our people. for loss or damage suffered as a consequence of their responding to, or placing reliance upon any claim or representation made in, any advertisement appearing in the Journal. Readers should make appropriate enquiries and satisfy themselves be fore responding to any such advertisement, or placing reliance upon any such claim or representation. By so responding, or placing reliance, readers accept that they do so at Contributors their own risk. On no account may any part of this publication be reproduced without the written If you would like to contribute to Scotland’s most widely read and respected permission of the copyholder and publisher, application for which should be made to the publisher. legal publication please email: [email protected]

© The Law Society of Scotland, 2020 ISSN: 0458-8711 Alan W Tom John West Catherine Heather Total Net Circulation: 13,689 Robertson McEntegart (co-author Corr Thompson (issue specific May 19) is a senior is a with Elizabeth is principal is a partner Av. Net Circulation: 13,628 (Jul 18 - Jun 19) associate with Ahmad) is an soicitor, Legal with MBS Solicitors, and partner associate with Services, and a member Edinburgh at TLT LLP SKO Family Scottish of the Tax Law Law Specialists Enterprise Committee

August 2020 \ 3 THE JOURNAL OF THE LAW SOCIETY OF SCOTLAND VOL.65 NO.8 – AUGUST 2020

Perspectives Features Briefings In practice

04 Journal online 12 30 Criminal court 40 Professional news Our August website exclusives We revisit firms who shared Roundup, with COVID-19 musings Virtual custody courts; Council remote working experiences: vacancies; Rising Star 2020; new 05 Guest view 32 Employment what will change in the office? levy?; policy work; Will Relief Stuart Munro Acting on anonymous complaints 42 The Word of Gold 06 Letters 16 32 Family Charging in line with our brand “New” lawyers, not “young”; Two contributions on the new An expert compromised Reviews group actions rules, including 43 Training: a wider view 34 Human rights from a working group member One firm’s programme for 07 Offbeat Judicial review and sifting out learning business Quirky news; Profile column 20 34 Pensions 44 Cross-border tax reporting 08 President Can the law allow “breathing PPF compensation; FCA action DAC6: what solicitors need Technology and citizens’ rights space” for contracts affected 35 Discipline Tribunal to know by COVID-19? Four recent cases Regulars 46 Risk management 22 37 Property Common issues, and some tips, The Supreme Court on siblings Commercial leases: code of in wills, trusts and executries 09 People as “relevant persons”: what practice for business recovery 48 Ask Ash 33 Consultations does it mean for hearings? Anxiety over going back to 39 Archive 38 In-house Findings of the lockdown survey the office 45 Notifications 26 49 Classified The Scottish football litigation: 50 Recruitment arbitration clauses, and unfair prejudice COVID-19 code 28 of practice for Cross-border maintenance: commercial leases: law and practice after Villiers Page 37

ONLINE INSIGHT

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The broken shield: a Legal tech: some tips Charities: members Tradecraft: money compliance nightmare? for catching up have “fiduciary” duties and practicalities Loretta Maxfield considers the Brian Rooney provides some A Supreme Court decision in an In his latest “tradecraft” implications of the CJEU decision personal recommendations for English appeal on the duties of collection of practical advice, upholding the standard contractual the benefit of lawyers whose members of a charitable company Ashley Swanson focuses on clauses for data protection outside legal tech is lagging behind, and should be noted also by Scottish property transactions and trying the EU, but invalidating the EU-US impeding their productivity. charities, Alan Eccles advises. to smooth the path particularly Privacy Shield. around settlement.

4 / August 2020 OPINION Stuart Munro While the pilot scheme has encouraged some to believe that remote summary trials can become the norm, serious questions remain to be answered if basic rights are to be protected, as they must

t’s funny how quickly things change. Six months • What about the accused? Can they participate from home? ago the news was all about Brexit; summer What if they record witness evidence? How can we tell they are meant heading to the sun; work meant following the proceedings? How can they communicate with I commuting, the office, the courts. their solicitor? Or should they also be at court, and in the Then, in mid-March, our lives were turned same room too? upside down. The initial hope that coronavirus • How does the system cope with vulnerable witnesses or would be over in a few weeks has been replaced by a recognition accused? What if a participant doesn’t have wi-fi, or a suitable that we’re in it for the long haul, with social distancing, local laptop, iPad or phone? The system has to cater for everyone. lockdowns and further waves and spikes until a vaccine finally • And what about volume? Most courts allocate six to 10 trials comes to the rescue. per courtroom, on the assumption that most will resolve or be The pandemic has had an enormous effect on the justice system adjourned, and only a handful will proceed. How would Webex and those who work in it. Scottish courts went into near-shutdown cope with callovers and last minute changes in priority? for several weeks, the largest courts being reduced to Many of these challenges will be capable of being addressed. dealing with a handful of custodies each day. Webex is a safe, secure, reliable and established technology. Any society needs a functioning justice system. Thoughts Courts, like the rest of society, turned to how the courts could reopen, while observing social must adapt to a changing world. distancing and shielding. The understandable priority was But any change has to be for the High Court trials. But how can you accommodate 15 jurors (not better. Certain fundamentals – to mention everyone else) with social distancing? A proposal effective participation, the right to abolish juries temporarily rightly caused outcry, and was to private communication with abandoned. Instead, the solution presented was to spread the a lawyer – are non-negotiable. jury around the courtroom; but the need to find somewhere Summary cases can involve else for the jury to deliberate and for the public to watch the very serious allegations; they proceedings meant three courtrooms being needed for every trial. can lead to imprisonment, loss And the lockdown had caused a backlog in trials, which would of employment and family grow unless the courts could run the same number as before. breakdown. Something would have to give. Importantly, the context has Scottish Courts & Tribunals Service realised that remote changed since early lockdown. hearings – where some or all participants are elsewhere – High Court trials are now using could be part of the answer. It cautiously introduced Webex remote juries – where the trial videoconferencing for the , then the and takes place as normal, but the Court of Criminal Appeal. However, to free up enough space for jury is located outside the courtroom. That could mean each trial High Court business (to say nothing of sheriff and jury trials), there only requiring one courtroom, thereby removing the threatened would need to be a clearout of business. takeover of the whole court estate, and freeing up courts for Against that background SCTS decided to pilot Webex for business such as summary trials. summary trials. The first remote summary trial took place in Webex will no doubt continue to play an important role in Inverness on 9 June, with a single accused, two police officers our justice system. It may help with procedural, non-evidential giving evidence, and one Crown production. The sheriff was in business. Remote trials may work in certain instances, such as chambers; everyone else participated remotely. The technology health and safety prosecutions. There may be greater scope worked perfectly well, and the trial proceeded without incident. in other types of process, such as fatal accident inquiries or The accused was acquitted. Further pilots have followed in commercial proofs. Ultimately, however, we must proceed with different courts. caution. Maintaining a functioning justice system in a pandemic But just as a swallow does not a summer make, so a handful must involve preserving fundamental rights, and that will require of pilot trials do not provide a basis for a fundamental redesign of careful planning, consultation and evaluation.. criminal courts. Many issues remain to be answered. For instance: • Where should witnesses give evidence from? Is it appropriate that they participate from home? How to guard against undue influence? And if they have to come to the courthouse, is it not as Stuart Munro, director, Livingstone Brown, , and member well putting them in the same room as the sheriff? of the Law Society of Scotland’s Criminal Law Committee

August 2020 \ 5 CORRESPONDENCE BOOK REVIEWS Employment “New”, not “young” Law in Scotland, 3rd edition SAM MIDDLEMISS AND recently completed was discussing what the legal profession MARGARET DOWNIE my Diploma after was looking for in its graduates. The five years as a phrase “what firms are looking for PUBLISHER: BLOOMSBURY PROFESSIONAL ISBN: 978-1526509628; PRICE: £85 I mature student, in their young lawyers…” took me by beginning when I surprise, as I was sitting near the front At nearly 900 pages, this is a comprehensive overview was 47. I had never and whilst I was the oldest, there were of employment law. Its timing is unfortunate because really considered certainly other students in their 30s and of the disruption due to COVID-19 and presumably subconscious age discrimination, though 40s. Such statements have been quite temporary changes to Employment Tribunal practices. as a gay male secretary when starting common over the years and I have made It is anyone’s guess what Brexit will bring. my career in the late 1980s, a point of raising it privately with the The authors cover the major bases of British discrimination was not new to me. lecturer, or guest speaker, to make them employment law, and its current place in the In fact, I experienced the spectrum of aware of how disappointing this can be respective legal frameworks of Scotland, and England discrimination in the office environment, to a mature student. & Wales. They draw on a large body of case law. not only against myself but due to race, On another occasion, a speaker said A distinctive feature of Scottish Employment sex, sexuality and disability to name they had thought about rejoining a Tribunal practice is that unlike south of the border, but a few. firm in their late 30s or early 40s after witnesses give their evidence in person, as opposed Over the years, there has been teaching, but had decided they were to by written statement, in almost all cases; and considerable progress, including “past it”. Again, not only I but others witnesses who have still to give evidence are not legislation and increased awareness in the class felt excluded by this and permitted to hear preceding evidence. The authors do of these issues. There also appears to wondered whether it was worth all the not make these distinctions clear. They also indicate be more awareness in the public mind effort studying if this was the reality. tribunal judgments are usually given on the final day of age discrimination against mature I, and other mature students I have met, of the hearing. This is only in undefended cases. people in the workplace. This does not have considerable drive and ambition to An increasing number of cases at first instance are mean, of course, that there is not still undertake university studies later in life heard by a legally qualified judge sitting alone. This considerable work needed in all areas and it should be appreciated how these has undermined the concept of the industrial jury, to eliminate discrimination: witness the off-the-cuff remarks can come across. which underpinned the original tribunal system. recent racial discrimination that still I write this in the hope that, just as This book will prove a worthwhile addition to any features daily in the headlines. you would not now make references employment lawyer’s bookshelf, but needs to be With this in mind, I have felt it to sex or race, references to age are treated with caution on matters of procedure. necessary to raise an issue on several considered and adjusted. Robert Neil occasions with both my universities Butler as early as 1969 coined the Steve Briggs, Beacon Workplace Law Ltd regarding statements that are quite phrase “ageism” and considered that it For a fuller review see bit.ly/3icoFMM common but as to which there appears could be either “casual or systematic”. to be a lack of understanding of the The above statements fall squarely impact they have on mature students. under the “casual” element. The Curious Case The comments are quite innocent and An article I recently read referred at of Maggie Macbeth run off the tongue easily, but I suggest one point to “young lawyers”, but also STACEY MURRAY that, just like other comments about later to “newly graduated” and “newly RED DOOR PRESS: £8.99; E-BOOK £2.99 sexuality, race, sex etc, they no longer qualified”. So, when you are going to “A gentle book, one to settle down have a place in modern society. use the word “young” to refer to a group with after (another) fraught day of You are now wondering what on of people who may not, actually, all be homeworking and switch off.” earth these could be. Surely you “young”, please consider the implications This month’s leisure selection is at have never made them? Well, you and use a different expression. bit.ly/3icoFMM might be surprised. The first instance I experienced was when a senior lecturer A proud mature student The book review editor is David J Dickson

BLOG OF THE MONTH lawscot.org.uk

We return to home territory this month in seeking things to do, obtaining support to highlight Rob Marrs’ “Hints and tips for and supervision – and, at number 1, setting trainees whilst being supervised remotely”. a pattern of communication. Wellbeing Knowing the difficulties facing trainees, features, too. who normally learn much by osmosis, and Supervisors will find a link to a page of their supervising solicitors, he provides 10 tips for them as well! tips to encourage trainees to be proactive To find this blog, go to bit.ly/33vHrrJ

6 / August 2020 WORLD WIDE WEIRD Buy your way in 1 Public opinion in Ukraine has split over a Justice to go out and offend, or just to turn yourself in? Getting the hump Ministry scheme offering gift certificates for Justice Minister Denys Malyuska, who claims the tinyurl.com/y3gkv343 “luxury cells” in the country’s less than congenial initiative will fight corruption, has promoted the Prosecutors have claimed remand centres. service as a potential birthday present for officials they were unable to Introduced in May, the “pay cells” offer and politicians. Surely it wouldn’t work here... act when a herd three meals a day, 24-hour security – and Proceeds are supposed to be used to of 80 camels a reduced risk of catching COVID-19. But improve conditions in regular cells. But caused havoc in limited to those awaiting trial, and reaction has ranged from the Russian region still presumed innocent. “the best marketing tool in of Astrakhan after Certificates are only the history of the Justice being released by a valid for six months, Ministry”, to “circus” pensioner who could after which the and “laughing stock”. no longer keep them. remand centre gets to keep the tinyurl.com/ 2 money. An incentive y2yr5wsh Bear faced tinyurl.com/yxgzwbq9 Campaigners are attempting to prevent PROFILE Mexican authorities from trapping and relocating a black bear in a wildlife park that approached hikers and appeared to pose for a selfie. Rachel Wood 3 Rachel Wood joined the Law Society of Scotland Rooster rap in May as Executive Director of Regulation bit.ly/33vWxSq A Louisiana man, who e Tell us about your and, with lockdown easing, claims to be pastor career to date? I have enjoyed some walking of a church called I am a bit of poacher turned meetings with colleagues. Holy Fight Ministries, gamekeeper, having worked Thank goodness we have today’s is claiming in a in big firms for over 25 years. communications, but there’s lawsuit that his My career has been varied but no substitute for face-to-face arrest for illegal there have been consistent connection. And I do miss being cockfighting was a strands in relation to risk, able to print and read documents constitutional violation quality assurance and change in hard copy! of religious freedom. management. I started as a

corporate solicitor and moved I thought law would be the u What do you see as the TECH OF THE MONTH into knowledge management at most challenging, applied for key regulatory issues? McGrigors, then worked in risk the accelerated LLB and here At the moment, the challenge Olio management there as well. For a I still am. is maintaining high quality iOS, Android – free few years, I was Director of Risk client service and continuing and Knowledge at HBJ Gateley t How have you found regulatory compliance during Tons of good food before returning to Pinsent joining the Society? remote working, furlough and goes to waste Masons, my most recent post. I don’t think I would recommend court closures – to which the every day. Olio is joining any organisation during profession is rising admirably. a localised way of r What motivated you a global pandemic and full Longer term, the legal services allowing people to become a solicitor? lockdown! It has made it more review is essential to allow the to share food Accident! My first degree challenging to connect with Society to modernise regulation. and other items was in history and my options people and learn the ways of that they might on graduating seemed to be working, but everyone has bent Go to bit.ly/3icoFMM otherwise academia, teaching or law. over backwards to be helpful for the full interview throw away. www.olioex.com

August 2020 \ 7 PRESIDENT Amanda Millar Technology has enabled many events to happen recently that would not otherwise have – but is not a panacea when it comes to upholding justice and the rights of the citizen, rights which globally are under increased threat due to the pandemic

… August and the staycation is in front Virtual activity of me as I write, and behind as you It was with great joy and hope that I launched our first virtual read. I hope you are all as safe and summer school to people from a diverse range of backgrounds with well as possible in these ongoing an interest in the law, which allowed us to open up the opportunity challenging times. I speak regularly to many more participants and had more than 70 attendees – more to people looking for a career in law than three times as many, and from a wider range of locations, than So and always say one of its great joys is we can normally accommodate at the in-person events. that nothing stays the same and every I also participated in a panel session with my day is different. Now the whole of #oneprofessionmanyjourneys fellow role models, hearing their society is getting a chance to see that in action, and not necessarily inspiring stories and running out of time to answer the myriad in a good way! questions from the very engaged students first thing on a Monday! As a profession, we continue to show our resilience, flexibility, Our High Street and Sole and desire to deliver for our clients and make meaningful Practitioners Conference took contributions to civil society. place towards the end of July, Technology has continued to be my constant companion again entirely remotely, and with in my work as your President. I had the opportunity to attend the highest-ever attendance a world leaders’ round table of lawyers recently, and inputs from of close to 200 participants. colleagues in Asia and Latin America brought into sharp focus the Wonderful to be able to engage fact that there is much legal turmoil across the world at present, with so many members and impacting on the human and civil rights many of us here take share knowledge from a wide for granted. The changes we have experienced through global variety of speakers in the pandemic necessity, and the resurgence of extreme views, show interests of continuing to support us that we must not be complacent about our human rights and members in a range of ways the need to preserve the pillars of our profession that contribute in these most unusual of times. to the democratic and civil rights that we hold dear: For our in-house colleagues, The independence of the rule of law, our responsibility as we launched the nominations solicitors to provide advice without fear or favour, the right to be tried for the now annual Rising Star by a jury of your peers for the most serious offences, the right to award. I am fascinated to see this express a strong opinion that may disagree with that of others. year’s nominations and I know We should oppose hatred, discrimination and marginalisation, our in-house sector will have but not debate. We must maintain our professional standards in the risen to their own challenges of client service and development. interest of our hard-won reputations but in the greater interest of More information can be found on p 40 and on our website. society. As citizens, we have rights and responsibilities. As solicitors, On a sad note, I was shocked by the sudden death in late July we have rights and responsibilities to ensure these are upheld for of Sheriff Richard Davidson, who I had the opportunity to appear all through ethical, professional advice and appropriate challenge. before in Dundee, Fort William and in hospital. He was always We contribute to supporting business, relationships and individuals forthright, and my abiding memory of him was that he took a in good times and bad. We prosecute, defend, challenge, protect, person-centred approach to cases involving those with mental develop, regulate, secure and sustain. illness, before it was established as “the right thing to do”. Technology, while incredibly helpful and positive in so An attitude which should inspire. many fields, is not the panacea for everything that is currently Stay safe. challenging. In many areas there is work still to do – as the results of our survey on the virtual custody courts pilot showed.. Society needs our profession to remain viable to continue Amanda Millar is President of the Law Society of Scotland – this work. [email protected] Twitter: @amanda_millar

8 / August 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]

Thorntons Law LLP (l to r): Michaela Dougan, Lauren Fettes, Joanne Clancy, Rachel High, Rachel Anderson and Neil Falconer

ABERDEIN CONSIDINE, Johnston Clark KIPPEN CAMPBELL LLP, Perth, Katie Mahoney (Succession & Aberdeen and has also been is delighted to announce the Tax Planning), and Fay Shearer elsewhere, re-elected for the appointment of senior associate (Commercial Property). has appointed seventh time as Jacqueline Jane Dow as a partner Nicola Gray managing partner, with effect from 1 August 2020. MURRAY SNELL LLP, Edinburgh, as a partner in a position he has She will assume responsibility for part of the MACROBERTS group, the Employment held since 2000. the running of the firm’s Private has appointed Gail Clarke as an Law team, working Client department. associate in its Estates, Forestry, primarily in Aberdeen and BRODIES LLP, Edinburgh, Agriculture & Renewables team. Aberdeenshire. Glasgow, Aberdeen LEVY & McRAE SOLICITORS LLP, She joins from BLACKADDERS. She joins from MACKINNONS, and Dingwall, Glasgow, has announced the where she led employment has appointed appointment of Carol Gammie SHOOSMITHS LLP, Edinburgh, services. private client as an associate. She joins the Glasgow and elsewhere, has lawyer Lisa Law, firm after having worked as a appointed Michael McLaughlin, , an accredited legal consultant with the OFFICE formerly head of Employment Edinburgh, Glasgow, Aberdeen specialist in OF THE PROSECUTOR OF THE (Scotland) with DWF, to its and internationally, has appointed incapacity and UNITED NATIONS in The Hague. Glasgow office. David Kirchin, head of the mental disability She is also a commissioner with corporate team in Scotland, as its law, as a director, the Scottish Criminal Cases Review STUART & STUART, Edinburgh, new head of Scotland. He will also and Sarah Lilley, Commission. Bonnyrigg and Penicuik, announce sit on the board of the company. an accredited the retirement of Gordon Cameron He succeeds Malcolm McPherson, specialist in MORTON FRASER LLP, Edinburgh as a partner on 31 July 2020. Mr who has retired as a partner but child law, as a senior has announced a total of 17 Cameron began his career at the will remain with the business as a associate. Both will be based in promotions across the practice, all firm in 1985 and became a partner consultant. Dingwall and join from INNES & with effect from 1 July 2020. in 1987. He will remain with MACKAY. Mimi Stewart has been made a the firm as a consultant. Emma BELLWETHER legal director in the Construction Horne, head of the Private Client GREEN, , Edinburgh, Glasgow, team, and also in that team, team, is assumed as a partner Edinburgh Aberdeen and globally, is to close Caroline Earnshaw and Julie from 1 August 2020. The firm has and Glasgow, its Aberdeen and Watford offices, Scott-Gilroy become senior also welcomed Angela Agrawal, has appointed with lawyers and staff in these associates, as does Lauren Hart who joined in January as an Caroline Clark as locations working from home (Banking & Finance). associate specialising in residential a consultant to its permanently. The Edinburgh There are seven new associates: conveyancing. Litigation and Regulation team. and Milton Keynes offices will Matthew Barclay (Agricultural & be available to those staff now Rural), Bess Innes (Commercial THORNTONS LAW LLP, Dundee BLACKADDERS, working from home permanently. Property), Jack Kerr, Kirsten and elsewhere, has promoted Dundee and McManus and Emma Wood Joanne Clancy and Lauren elsewhere, JONES WHYTE LLP, Glasgow, (all Succession & Tax Planning), Fettes from Personal Injury in has appointed announces the promotion of and Catherine MacPherson and Edinburgh, and Neil Falconer from Peter Duff of its family lawyer Amerdeep Dhami to Angela Myles (both Banking & Intellectual Property in Edinburgh, Glasgow office as associate, personal injury solicitor Finance). to associate; and Rachel Anderson chairman, following Nicola Waters to associate, and Six new senior solicitors are and Rachel High, both from Private the retirement of partner Matthew McCabe, head of the Robyn Keay and Matthew Miller Client in Dundee, and Michaela Scott Williamson, who Industrial Deafness Department, (Litigation), Laura McKenna and Dougan from Personal Injury in will continue as a consultant. to senior solicitor. Nicole Moscardini (Employment), Edinburgh, to senior solicitor.

August 2020 \ 9 IN ASSOCIATION WITH DENOVO

There are only 3 problems your law firm faces It all boils down to time, profit and efficiency. We think we can help

hree problems? Here they are… 1. We need to save time 2. We need to make more profit T 3. We need to make our team more efficient. Now, you may be thinking, “Come on, of course they are; this is not new information.” However, my point is not whether these are the problems; I’m saying they are the only problems law firms face. No matter how you dress it up or how you describe them, it’s always these three core challenges. And in most cases, businesses turn to tech for help.

Are lawyers technophobes? What I find frustrating is when I hear people speak about lawyers as if they are stuffy, three piece suit wearing, money clutching laggards Profit • Do you have a clumsy, paper-based, error- who must be tamed and tricked into modernising I’ve often heard that lawyers will only buy prone, manual system? their business. For the most part that is simply software that looks “cool” and is quite expensive. • Are you running your business on Excel and it’s not the case, and I instantly empathise with the Maybe that’s true for big firms, but whatever no longer working or scaling? vast majority of lawyers out there grinding and anyone’s perception is, lawyers aren’t made of • Do you have people who need to work remotely fighting the good fight. You’re not technophobic money. If your rates seem high, your costs are or at home, but you need access to the same files? idiots who repel the idea of future proofing your too. Margins for most of you are tight, and getting • Are you micro-managing your team and their business. You’re just busy and want help to make tighter. So, we have to give you a system that processes because you just can’t trust them to it perform to its best. does what you need, at a price that works for do things exactly the way you would? you. From there we streamline and automate • Are you and/or your team spending most Time what we can to help you reach your goals and of your day working through laborious When it comes to saving time, we keep our maximise ROI in every way possible. administrative tasks? solutions in search of problems. We are less One way includes finding a cost-effective • Do you have a system that can’t keep up? interested in looking “really cool”, and more package that can simply “get the job done”. So, It’s safe to say that if you’re not maximising interested in being productive. You’re interested in rather than you viewing our tech as a reluctant your time or being as efficient as you can, you’re technology that solves problems you encounter overhead, you buy into the idea that this system leaving money on the table. We want to reduce every day in practice: writing, billing, analysing will help you and ultimately make you more the time spent performing routine and critical firm performance, and client relationship profitable. Tick! tasks, so you don’t lose the opportunity to serve management. You want to do these things quicker additional clients. and more efficiently. We can tick that box. Efficiency I can also guess where lawyers don’t want to SMBs are constantly looking for new technology Let’s not overcomplicate things be at 6.30pm: just like everyone else, you don’t to create a more productive and efficient Lawyers do complex work and can have want to be in the office! So, when developing our workforce. In addition, remote working has led complicated demands. That doesn’t mean you software, we think about your everyday practice. to an increased need for on-demand data – need complicated software. If you have to work late, it’s not because you’re accessible any time, from anywhere. I define We don’t think you are technophobes. Far from uploading your latest TikTok video! If we can save productivity as the strategic alignment of vision, it! All we want is the opportunity to show you you time and help you leave at 5.30 instead of focus, and technology. Identifying tech solutions how treating tech slightly differently can help 6.30, you might just consider buying our product. that unlock these and enable true productivity, all and ultimately become an integral part of your Plus, we know you simply won’t believe us if an within budget, is a goal of all SMBs. business strategy to meet your objectives. overly enthusiastic salesperson tells you our Rather than me rhyming off 20 features that product is so revolutionary that you’ll suddenly will make you and you team more efficient, just Let’s solve these three problems together. Call us be working a 40-hour week! We’re realists and ask yourself a few questions and take it as read on 0141 331 5290, email [email protected] or BS is not a language we speak! that we can tick those boxes too: visit www.denovobi.com

10 / August 2020 Manage your business better: Save Time Increase Profit Boost Efficiency

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Email [email protected] Call 0141 331 5290 Practice Performance Matters Visit denovobi.com REMOTE WORKING

Reinventing the office When law firm offices reopen, will it be back to work as before? How much will have changed through experience of remote working? The Journal revisited firms we quizzed as lockdown began Words: Peter Nicholson

olicitors’ offices south Wellbeing, often cited as a concern to see how adaptable our colleagues have of the border are in this context, has he believes seen been throughout this situation.” opening up; on present benefits, “with many colleagues taking That is reflected by Marianne S indications Scotland advantage of the time they are getting McJannett, associate at TC Young, who has a few weeks to back from their daily commute and using has been able to carry out her work wait. By then, it will be that for exercise and fitness”. “in the same way as I did in the office, almost six months since lockdown took Jennifer Young, chairman of Ledingham meeting deadlines and client needs as effect. Will “going back” mean just that, or Chalmers, believes remote working required. I have not missed the morning has the working day changed for good? “has largely worked well, with “a strong commute and fighting for a coveted seat Back in April, soon after lockdown, the community spirit about embracing this on the train into Glasgow, although I do Journal surveyed a spread of firms to find change”, but has had its challenges, such miss having 45 minutes each day to sit out how their teams were adjusting to as juggling work and family commitments. and read and set myself up for the day, remote working. This month we followed “In some ways, remote working or switch off at the end of the day”. up to find out how they now view the pros has brought us closer together across Likewise, Paula Skinner, partner at and cons, and the impact on future practice. the firm. While folks have missed the Harper Macleod, says: “Before all this I opportunity to turn to a colleague during would always have thought that in our Driven change the day to bounce ideas off them, or line of work, when you are involved in “The main positive has been that it has we’ve had to think again about how deals, you would need to be in the office. forced innovation in terms of new practice best to mentor team members online, However, we have proven that remote and procedures”, reports Greg Whyte, there’s something more intimate about working can be done effectively. Many of managing partner of Jones Whyte. being ‘invited’ into someone’s home over our clients are entrepreneurs and they’ve “We can now operate with only 2% videoconference.” simply been getting on with it, as are we.” of the overall team physically present Overall, output does not appear (and this number is decreasing as we to have suffered. “If anything, we are A need for contact adapt further). The negative has been more productive from home,” claims But people do miss the casual contact with the absence of the social side, both in Simon Allison, employment partner at colleagues, especially for work matters. and out of work time.” Blackadders. “Except for occasional trips to “Not having people right beside me to Shepherd & Wedderburn’s Andrew the office for essential scanning, there isn’t bounce around ideas, or even listen, has Blain reflects others in paying tribute anything that cannot be done from home, been difficult,” McJannett acknowledges. to technical support. “Thanks to the thanks to technology. It has been refreshing “While we have daily phone calls with tremendous work of our IT team and the each other, and weekly team meetings dedication of our lawyers and support via Zoom – a lifeline and a great way of staff, we have not seen any disruption to keeping in touch, it’s not the same as a client services while working remotely.” quick chat over a cuppa in the morning.” Secure videoconferencing technology for She further admits: “The biggest remote meetings with clients, contacts negative for me has not been remote and colleagues has been extended to working; it has been working at home in virtual social events for keeping in touch. a pandemic. This has involved general “There have been many positives,” worry about the global situation, as well Brodies’ Nick Scott affirms. “Perhaps, as personal anxieties about family and most importantly, how quickly and friends’ health, while also juggling being seamlessly our colleagues engaged a full time employee and stay-at-home remote working. It has also accelerated mum to a very active toddler. It has the move towards more digital practices. certainly been a challenge.” One tangible measure is the reduction in Skinner comments: “It is working printing, which has decreased tenfold in apart, rather than ‘working from home’, the last three months.” which is the issue you need to monitor

12 / August 2020 team members working together. “As time passes, cracks naturally appear and the need to re-engage in a traditional setting (both professionally and socially) becomes apparent.”

Flexible future? Has the experience led to a change of thinking about how much homeworking, and flexible hours to allow? Allison replies that while the SSSC already had a very supportive approach to flexible hours, “We are developing an approach which will be much more supportive of the principle that work is an activity, not a place. Most staff are indicating that in future they would like to work a few days at home and a few days in the office.” “Unsurprisingly, most colleagues are expressing an interest in a mix of home and office working,” Blain reports. “We will certainly be guided by our colleagues’ preferences and the needs of clients, who, almost without exception, have also adapted rapidly to homeworking.” For Whyte, “The pandemic has strengthened our view that homeworking is something to be embraced rather than feared. “Flexibility is what professionals, especially millennials, demand and expect nowadays. It is not, as is sometimes said, that millennials are entitled: far from it. Rather, millennials constantly. We’ve learned that having “The main positive has been that have choices and opportunities. Enabling everyone working from home means these enhances rather than stifles you need to be more organised than it has forced innovation in terms productivity and creativity.” ever, even in terms of simple things such of new practice and procedures” Scott emphasises allowing choice, as filing because you can’t quickly ask given there are those who do prefer to one another where something is. It’s work from the office; Young agrees that a guaranteed way to leak time so you her firm now has “lots of confidence in, really have to be disciplined.” included weekly team updates, live virtual and a much clearer picture of”, how well She too misses “the small chats”: Q&A sessions, and surveys about how both homeworking and flexible hours “When you are beside someone all day people want to be updated, and what can work. you can get a better idea of what is really they would like to see happen when they McJannett “would question any going on with them, though I think the fact return to the office. employer whose employees stepped that we have all recognised this shows She points out the particular up to the plate and continued to work we are thinking about one another’s challenges for new people joining, for from home to support a business during wellbeing, and that’s a good thing. whom strong internal communication has lockdown, who then denies them the “For my part, I feel I can be more been particularly important. option of remote working in future”. productive in the office, but that’s partly Maree Allison at the Scottish Social TC Young has been “incredibly because it is more efficient for me as a Services Council agrees. “Induction and supportive” of her circumstances, and senior person to have a quick chat with training of new staff is more challenging. “as long as the work is getting done, a younger colleague, mentor them and We are conscious that for some staff it to the same standard and in line with pass on pieces of work. Those small, has been an isolating and difficult time.” client expectations, then allowing people immediate interactions are definitely Whyte, too, stresses the importance the option of flexible working is key to harder to replicate.” of the “informal conversation or chance adapting to the changing landscape of Young observes: “Internal encounter” for ongoing learning. the workplace”. communications have become even more Another risk he sees from extended Skinner responds: “From my important. We took the view we couldn’t homeworking is the dissipation of the discussions it’s clear that everyone in communicate too much.” These have trust and relationships built up between the team at least wants to get back to

August 2020 \ 13 REMOTE WORKING

the office to some degree, though redesigned, then built up from that in general I think people feel they starting point”. have been able to achieve a good As regards hours, her firm sets work/life balance.” certain parameters. “We quickly Blackadders’ Allison begins realised it was essential for us to with team goals and timescales. “It keep to a core period where we doesn’t matter whether we choose knew the whole team would be to do something outwith working working and available. These core hours or between 9am and 5pm. It hours of 9.30 to 2 mean there is is about assisting them accomplish a good chunk of the day when we these goals. Leaders need to be know we can interact freely with clear about how their team fit into each other and schedule calls and the bigger picture. You cannot over- catchups with the team and with communicate when you’re working clients and others. Outside these with a remote team.” hours, everyone was free to make He sounds a note of caution up their hours at whatever times about “psychological safety”, which suited them, subject only to the is “a real concern for our firm. Our requirement that, once stabilised, partners have taken it in turns to these became relatively fixed so email all staff on a monthly basis that we all became familiar with with an update from each unit” – each other’s work patterns. “It doesn’t matter have taken a shared space which covering not only firm business, but “Because we all have different we use as a team hub, where we voluntary work undertaken by staff. commitments and also times of whether we can get together for in-person “We even had one update featuring day when we are at our most choose to do meetings once or twice a week, a trainee’s TikTok dance routine. Our productive, between us we are and which also acts as our physical managing partner also conducted working from 6am until 10pm, and something outwith presence and a space where we can a live webinar where staff could productivity is higher than ever.” working hours or meet clients and contacts. sign in anonymously and type “We have set up a social their questions. They could ask him Shape of the office between 9am and enterprise to manage the space anything (and they did).” What does it all mean for office 5pm. It is about when we are not using it and are Anne Campbell of Lennox needs? Here Lennox Forensic has letting it out on a non-profit basis Forensic Accountants describes made the most radical change. assisting the team to support local freelancers and homeworking as “the ultimate in “In our new world of work, to accomplish small businesses who need ad hoc business interruption insurance”; maintaining an office space 24/7 space but cannot afford to take on the need now is “to make sure just doesn’t make sense,” Campbell these goals” premises at this time... it is a privilege that our business structure declares. “We have taken the to be able to help in this way.” and operating procedures are decision to give up our office and Our other respondents may be

Remote hearings: how far? We took the chance to ask about our positive move. Hopefully, remote hearings preliminary hearings “relatively easy” to carry respondents' experience with remote court and will be a bigger part of what we do”; and out this way: “and the employment judge was tribunal hearings, and whether they think these (concerning Fitness to Practise Panel hearings) very understanding when my toddler came might become the norm. Maree Allison adds: “Feedback has been into the room asking for Fireman Sam to be put Jennifer Young reports a general view in very positive. For us, they will be the norm back on the television!” But they took longer her firm that they have been effective and when appropriate.” than usual, two running well over an hour efficient, and an expectation such digital use Marianne McJannett found tribunal instead of normally 20-30 minutes. will increase. However, “There is a high level of She adds: “To conduct final hearings relying frustration that the Scottish court infrastructure on witness evidence and numerous documents seems to lag behind that in other jurisdictions, could be difficult, and ultimately I think would and England in particular.” take up far more tribunal time than would be Nick Scott responds: “We believe this is a required for in-person hearings.” positive step forward for the Scottish courts, Simon Allison's team hopes remote and a move towards creating a system that... hearings, while good for straightforward case delivers a number of benefits for our clients, management, do not become the norm. “Just particularly in efficiency and cost.” like with meeting clients over Zoom, it is very Greg Whyte states: “From a personal difficult to gauge emotions, which makes it perspective I think this is a long overdue difficult to ensure that justice is done.”

14 / August 2020 IN ASSOCIATION WITH MITIGO

Top 10 cybersecurity viewing their office space differently, when they take place virtually. It’s but still regard it as integral. really easy too to share documents checks for your return “In planning Brodies’ new office during these sessions and update in Edinburgh [a move scheduled them in real time.” David Fleming, Chief Technology Officer at Mitigo gives for next year], we had already McJannett takes a similar view. his 10 top tips to help firms avoid a cyber incident and challenged ourselves to think Presenting Zoom webinars has reduce the risk of a breach when returning to the office differently about what the office been “fantastic and a great way is, and how clients and colleagues of updating clients and contacts he move to will want to use it,” Scott explains. throughout the country, without the remote “Having a physical presence is still travel time and expense”. Attending working very important, arguably more client management committee caused a so, as changes brought about by meetings virtually has also worked T spike in firms the pandemic will likely see more well: “an effective way for clients falling victim virtual hearings, for example, and to keep costs down while taking to damaging cyberattacks, so to be able to provide the space appropriate legal advice on difficult including ransomware and email and the technology for our clients in decisions”. And CPD “has been account takeover. I now fear, as that respect, is fundamental.” really nice to do from the comfort staff start to return to the office, Similarly Whyte says: “We have of my desk”. that even bigger issues may lie just completed the purchase of a Whyte plans to respond to ahead of firms. new head office in central Glasgow. I demand: “We will keep in place The things which would believe it is important to have a base all new methods of communication keep me awake at night are where everyone can congregate and and interaction, while recognising (1) malicious software being meet clients. I suspect it will operate that face time is still king for introduced back into the office more as a hub than as a place to be a great many clients, lawyers by “dirty” devices; (2) security every day.” and transactions.” protection failing, leaving known From an in-house perspective Blackadders’ Allison, though, vulnerabilities; (3) data being Maree Allison also predicts office has found client video calls “quite lost or compromised in the space – shared with two other public challenging, since it is normally move; and (4) staff bringing bodies – being geared more towards straight down to business – there digital behaviour into the meetings and training, with most is little chatter about niceties or office that is inappropriate and and ports should be removed, staff working partly from home. personal matters, and lawyers have dangerous. retained by exception only. Blain regards it as too early to work hard to spot their clients’ If you are worried about this 8. Personal data and to assess the impact of the last real emotions during a Zoom call”. too, please read carefully this confidential information must few months on future requirements, From the SSSC, his wife reports: top 10 priority checklist: be consolidated to follow “but the experiences are likely to “As a public body we work closely 1. Staff cybersecurity refresher existing company policy. Check impact how businesses use office with Government and other public training should be issued prior for temporary use of cloud space in future”. bodies. That engagement has to office return and browser collaboration platforms. Young is confident Ledingham worked very well remotely and we controls should be reviewed/ 9. Backup configuration needs Chalmers will still need its five expect that will become the norm.” tightened. to be reviewed to ensure it is offices across the country. “They’re A beneficial side effect, Scott 2. Work laptops, computers, and working effectively and securely. important to our staff and our clients. relates, has been greater use of drives (including USBs) should 10. Local and external firewall But lockdown will have an impact on electronic documentation and have a full anti-virus scan before configuration should be checked, how we use them in the future and e-signing. “We believe this is returning. ensuring alerting is directed what technology we’ll need.” progress towards legal systems and 3. Work mobile phones, laptops appropriately. She expects a rise in demand processes that are more fit for the and computers should be There is of course more to do, for video meetings, and with fewer future, and would encourage their brought up to the latest OS but if you do this top 10 well, it people present, more demand for greater use as restrictions ease.” versions. will dramatically reduce your areas for team activities. “That Campbell remarks: “It turns out 4. Once reconnected to the risk. If you do not understand doesn’t necessarily mean fewer that new ways of working are fine secure network, ensure that any of the above, please seek desks, but will make us think more after all – and in most cases an anti-virus software has updated appropriate advice from a about how we use our existing improvement. Remote client identity and is reconnected to its central cybersecurity specialist. space. It could well mean we need verification is a must now, and control. This article was produced by less storage space for colleagues certainly appreciated by clients. 5. Personal computers and Mitigo. Take a look at their full who, until lockdown, weren’t And the enforced rollout of all our phones should only be service offer: www.lawscot.org. confident about going paperless!” tech-forward solutions that were connected to a properly uk/members/member-benefits/ previously only used for those separated guest wi-fi. professional-legal-services/ Meeting client needs clients we thought suited to these 6. Automated software and OS mitigo-cyber-data-security/ As for dealings with clients and approaches has been a revelation.” updates processes need to be others, Young expects these to She concludes: “It feels like five reviewed and re-enabled as For more information contact continue online longer term. or 10 years’ worth of change has necessary. Mitigo on 0131 564 1884 or email “There’s a real discipline around happened in four months – and it 7. Remote connection software [email protected] meetings, and meeting structure, turns out that is a good thing!”

August 2020 \ 15 GROUP ACTIONS

Power of the group Group proceedings can now be brought in Scotland. The Journal discussed with Robert Milligan QC, a member of the working group that produced the court rules, what they contain and who may benefit

Words: Peter Nicholson

lass actions, or group Robert Milligan QC, a member of the end to it, and it is very possible that proceedings as they Scottish Civil Justice Council working group an opt-out procedure will be introduced are officially known, which developed the rules, told the Journal in due course.” have arrived in that the group was tasked with producing He added that in addition to lessening C Scotland. Enabled by straightforward rules encompassing only the financial burden for individual claimants, part 4 of the Civil the essential procedural elements required “For defenders, an advantage of the opt- Litigation (Expenses to enable group proceedings to operate in procedure is that it gives knowledge and Group Proceedings) (Scotland) Act effectively. about the size and scale of the action, and 2018, detailed rules in the “We made a commitment to produce the the legal costs of one action should be (Rules of the 1994 new rules quickly so that potential litigants significantly less than the combined costs Amendment) (Group Proceedings) 2020 could benefit from the new procedures as of many separate actions.” came into force on 31 July. soon as possible,” he said. “We looked at the Recommended by Lord Gill’s review of practical and procedural aspects relating Essential differences the civil courts – rather than, as with most to implementation of each of the different The popular image of a class action may of the rest of the Act, the Taylor report – regimes and decided to begin with an opt-in involve a group of consumers with a the aim of group proceedings is to provide system, as more stakeholders would be common complaint against a supplier, but for claims that would not otherwise be familiar with it.” any number of people from two upwards, economic to bring to court, due to their low This would allow the who each have a separate claim, can value individually compared with the costs court to gain experience constitute a class under the Act. How then of litigating. in dealing with what is “The rules will group proceedings differ from an action anticipated to be the with several individual pursuers? Opt-in: given the nod more straightforward should be seen “In group proceedings a representative Two basic types of class actions exist: opt- type of group procedure as the start of party brings the action on behalf of all in, under which claimants must elect to join cases. “The benefit members of the group,” Milligan explains. the proceedings, and those who do not are of this experience the process, and “The rules introduce a new form of able to raise their own actions; and opt-out, can be taken forward it is possible summons, a new procedure for the which determine the rights of all members when considering the appointment of a representative party of the class except those who expressly development of an that an opt-out and for obtaining permission of the court choose otherwise. While the Act envisages opt-out regime in future. procedure will to bring the group proceedings. The rules both types, initially the rules – new chapter The rules should be provide a mechanism enabling a group 26A of the Court of Session Rules – only seen as the start of the be introduced in member to opt-in to the case (or withdraw provide for opt-in. process, rather than the due course“ from it), and for the preparation and

16 / August 2020

GROUP ACTIONS

maintenance of a group register by the representative party.” In addition, one of the main objectives is to identify and resolve common issues at an early stage. “The working group considered that an essential feature would be the incorporation of broad case management powers to facilitate judicial discretion to manage cases with flexibility in the individual circumstances of the case. The new rules therefore draw on elements of existing Court of Session case management models to achieve this aim and include provisions for fixing a preliminary hearing, case management hearings, debates and pre-proof hearings as appropriate.” Milligan accepted that the procedure might be suitable for, say, a personal injury action where several family members claim damages for the death of a relative, or a number of individuals alleging defective surgical implants or the like – if the claims “raise issues which are the same as, similar or related to each other”.

The permission stage If actions need the court’s permission, “This approach should improve considered would form the bulk of the how will that be determined? Here the group proceedings actions coming before Act requires the court to be satisfied as access to justice for a great the court,” Milligan confirms. “This approach to the similarity (in fact and law) of the many potential litigants, and should improve access to justice for a great issues raised; and that the representative many potential litigants, and save parties party “has made all reasonable efforts” to save parties money as well as money as well as saving court time. The identify and notify all potential members saving court time” SCJC intends to consider whether the rules of the group. The rules further provide for can be modified to incorporate judicial refusal (for which reasons must be given) review cases at a later stage.” where the representative party has not their own interest in the proceedings, demonstrated that: demonstration that they would act fairly Who pays? • there is a prima facie case; and adequately in the interests of the An important question is how the rules on • that it is a more efficient administration group as a whole, and that they have no expenses will work. In this respect the rules of justice for the claims to be brought as conflicting interests; and demonstration are less than specific – by design, according group proceedings rather than separate of their competence to litigate the claims, to Milligan. proceedings; or “including financial resources to meet any “The working group concluded that until • that the proposed proceedings have any expenses awarded”. there is relevant operational experience real prospects of success. and data available from Scottish Courts & Milligan further highlighted that when Anticipated claims Tribunals Service, the cost of servicing the granting permission, the Lord Ordinary Access to justice issues apparently led new procedure will remain unknown. It will must make an order (to be advertised within to the SCJC expediting its work on the not be possible to agree policy on new fees seven days), which among other matters: rules. Milligan told how the working group provision in the absence of that information, • states the name and designation of the were aware of the multi-party consumer and the position is the same regarding representative party; litigations raised against Volkswagen Group potential changes to existing tables of • defines the group and the issues; in other jurisdictions in relation to the solicitors’ fees. The SCJC therefore intends • requires the representative party to lodge widely publicised emissions scandal. to programme a future review of these a group register; “Similar consumer litigation may be aspects by its Costs & Funding Committee. • specifies how a person can become a brought in Scotland under the new regime. “In the meantime, under the opt-in group member and a timescale for doing Because of concerns about in procedure the court will be entitled to so; and those proceedings, there was a degree of determine the liability of each group • specifies how a person can withdraw urgency in implementing the new rules. member for payment of a share of Robert their claim. That at least partly explains why an opt-in Milligan QC any taxed expenses incurred by the The granting or refusing of permission model was used.” is a member representative party (and may do so can be reclaimed without requiring leave. What is not part of the rules at this stage of Compass before or after the conclusion of the A Lord Ordinary must also be satisfied is public law matters such as environmental Chambers action). In awarding expenses in group and has acted as to the suitability of the proposed claims. “The working group’s initial focus proceedings, the court will retain its in a number representative. Factors for consideration was to develop court rules for ordinary of group discretion to apply the general rule that include their special expertise and abilities, actions raised by summons, which it litigations expenses follow success.”

18 / August 2020 First questions for the system The new Scottish regime reflects a wider trend, but questions remain about how it will work in practice, as this commentary explains

ntroduction of the new regime Costs and expenses in Scotland reflects a trend Group proceedings can be high value, raise new across Europe of facilitating procedural issues that do not apply in unitary group proceedings. For claims, and be vigorously defended. Accordingly, I example: they will be expensive to pursue, and pursuer • Competition opt-out claims law firms will work with litigation funders on have been possible in the UK since 2015. these projects. • In October 2019, the English Court of Appeal A key battleground will be the extent to which permitted an opt-out data protection class group members are liable for expenses. The action on behalf of around 4 million people court will consider the proposed representative’s to proceed against Google, using the financial resources to meet any expenses “representative action” mechanism. awarded, but there is ambiguity on whether the • In January 2020 the Netherlands introduced a do not require to be disclosed”. It is not representative will be liable for group members’ procedure for bringing opt-out class actions for all immediately obvious how the court can properly adverse costs or only for their own. causes of action. assess the viability of funding arrangements Who bears the cost risk, and to what extent, • At European Union level, the Directive for without access to the relevant documents. will influence participation rates in these claims. Collective Consumer Redress is likely to be passed • As to the “permission” criteria: Where group members bear cost risk (as later this year, setting out minimum standards for Criterion (a) in s 20(6) of the Act (claims raise under the English group litigation order opt-in collective proceedings that each member state similar issues) is a commonality requirement, regime, where group members are typically must incorporate into their domestic procedural law. which is a usual feature of group proceedings severally liable for common costs), participation In the US, the trend has been in the opposite mechanisms. The wording is very similar to the is disincentivised. Both to address this risk and direction, with a series of Supreme Court decisions commonality test in the UK-wide CPO regime, also to encourage participation, claimant law that have applied more stringent tests at the which requires that claims have the same, similar firms and litigation funders purchase adverse certification stage. or related issues of fact or law. Under that regime, cost insurance (“ATE”). However, cover can be As it happens, Scotland already has an opt-out the Competition Appeals Tribunal has ruled inadequate, as recently demonstrated by Sharp class action mechanism. As noted in the first bullet that a single qualifying common issue can be v Blank [2020] EWHC 1870 (Ch), a costs decision point above, it is possible to apply for a collective sufficient: Merricks v MasterCard [2017] CAT 16. The of the English High Court following the failed proceedings order (“CPO”) on an opt-out basis commonality test for US class actions requires shareholder claim concerning Lloyds’ acquisition UK-wide, but only for competition claims. The new that common issues must predominate over of HBOS, where total adverse costs cover is Scottish regime is not restricted to competition individual issues, but it appears that there is no £21.45 million but the defendants are claiming claims, and pursuer firms are likely to focus on predominance requirement in the Scottish regime. costs in excess of £30 million. If, in contrast, full areas that have traditionally been fruitful for Criterion (b) requires that the representative has cost risk is borne by the representative on behalf collective proceedings in other jurisdictions, made “all reasonable efforts” to identify and notify of the group, putative group members will be less including product liability, consumer protection, potential group members. In principle, persons concerned by the adequacy of ATE, resulting in employment and pensions, data breach claims, outside Scotland can participate in opt-in claims, higher participation rates. and shareholder/securities actions. so is there an obligation to contact potential group Securing the finance required to pursue a Introduction of the new regime on 31 July has members beyond Scottish borders? This could be dispute will be key to advancing the action. The gained a lot of attention, both within Scotland and an onerous requirement. Law Society of Scotland is continually working beyond. Claims are already under preparation. • Perhaps the most significant question is on the with the legal profession to improve price Pursuer law firms will collaborate with likeminded extent to which the courts will require document transparency and flexibility. However, as we have firms in other jurisdictions, and litigation funders production for certification hearings. Preventing seen around the world, we expect that litigation are actively exploring this area. We could well a defender from accessing funding documents funders will provide attractive funding solutions see a steady stream of claims filed under the new may prejudice its ability to raise concerns on for group proceedings in Scotland. regime, but its long term viability depends on how the applicant’s ability to pay expenses. Absent the courts handle this new procedure and how access to documents, both from the pursuer and they resolve the important issues that the rules the defender, any merits assessment (prima facie do not directly address. case/real prospects of success) is likely to be denuded of value. Broader document disclosure Determining certification would result in a more robust certification hearing, There are a number of important questions on but would inevitably increase costs. how the courts will apply the authorisation and Parties that fail at the certification hearing permission criteria. For example: will likely appeal, particularly for high value • The applicant must demonstrate it has financial claims. Thus, clearer guidance on the certification Kenny Henderson and Graeme MacLeod, resources to meet any expenses. However, the standards should develop, albeit this process will CMS and Frances Sim, Restitution rules state that “details of funding arrangements take a number of years.

August 2020 \ 19 CORONAVIRUS: CONTRACTS

Recovery time for contracts? Influential legal figures have called for a “breathing space” approach to contractual disputes caused by COVID-19 disruption. Peter Nicholson attended a webinar to develop the idea, and interviewed two of the group behind the concept

plethora of defaults; a for the continuance of a viable contract rather contractual relationships would change in a more deluge of disputes; an than bringing it to an immediate end.” collaborative direction, as would dealing with unbearable strain on the Calling for a comparative approach, it urges commercial disputes. Renegotiations would be judicial system, a debate as a matter of priority on how the law needed and the courts were not the right place A domestically and might encourage “a legal environment which is for these. He too approved the Cabinet Office internationally. All of these conducive to optimism and a global recovery”. guidance – “an extremely well thought through warnings have surfaced in In furtherance of that aim, BIICL held a webinar document” – though it would require alternative assessments of the effects of COVID-19 on the in late June to explore possible approaches, and and fast track dispute resolution mechanisms, for world of commercial contracts. the Journal was able to interview two of the the sake of continuing business relationships. That many business relationships have contributors to follow up some of the themes. In the future, building in a means of amending been disrupted by the pandemic is unarguable. essential terms including pricing and payment But how should the law respond? Some Comparative angles should become a feature of contracts, with a commentators dusted down the authorities on Opening speaker Dr Eva Lein of Lausanne neutral mechanism to assist in cases of difficulty. force majeure, frustration and the like; but is it University explained that the concept notes Training in effective communication and conflict helpful to turn at the outset to such concepts related to both dispute resolution methods and management would also be important; and when the business, and economic, priority will the substantive law. On the former, constructive ADR tools should be built into contracts, with usually be to preserve the trading relationship? alternatives to relieve the strain on formal businesses adopting corresponding policies and Governments globally have recognised this, processes would be needed; on substantive guidelines. Virtual ADR processes were already through temporary legislation designed to provide law, some jurisdictions including Singapore proving very effective, possibly with advantages relief to individuals and businesses which might and Germany had already enacted temporary over face-to-face mediation. otherwise face harsh outcomes through no fault measures – these vary considerably; and there He concluded: “If people say what we are of their own. So have a group of senior lawyers, advocating isn’t really justice, from a business combining judicial and academic expertise, perspective I don’t think businesses are under the auspices of the British Institute of “From a business necessarily looking for justice but for resolution, International & Comparative Law (BIICL). and what we should be offering is a resolution of An initial meeting of seven, including two perspective I don’t think their current issues.” former UK Supreme Court Presidents (Lords businesses are Catherine Dixon, chief executive of the Phillips and Neuberger), and Scotland’s Sir Chartered Institute of Arbitrators, said her David Edward QC, led to the release in April of necessarily looking organisation now had a pandemic disputes “Breathing space – a Concept Note on the effect for justice but for resolution service using ADR to facilitate of the pandemic on commercial contracts”, and businesses, particularly SMEs, recovering a larger group delivering a fuller comparative resolution” quickly, keeping costs down and giving some survey in a second concept note in May. certainty as quickly as possible. She believed it is a problem in how they interact with general reflected the Cabinet Office approach. Operating Seeking breathing space contract law. online and on a fixed cost basis, it offered the “In times of uncertainty, the law must provide In the UK the Cabinet Office provided welcome options of facilitated contract renegotiation, a solid, practical and predictable foundation for guidance dated 7 May (since revised on 30 June), mediation and/or fast track arbitration. the resolution of disputes and the confidence which (while not formally applying to Scotland) She was joined by James South of the Centre necessary for an eventual recovery,” the first urges “responsible contractual behaviour in the for Effective Dispute Resolution, who believed paper states. While sometimes, as with the context of the pandemic”, both ahead of and the pandemic had accelerated a trend of the business interruption insurance dispute, the during dispute resolution. arbitration and mediation communities coming courts may be the only option, “In other cases, Turning to contractual principles, Lein noted together, with the aim of providing clarity and arguably an outcome which leaves one party a that these can be interpreted and applied keeping things simple for businesses: a “one stop winner, and the other a loser, will not take full differently between jurisdictions. A Spanish court shop” approach. In his experience parties did not account of the market/social contextualisation has already ruled that COVID-19 is a very specific really care about concepts such as force majeure; of the crisis.” situation that requires a very flexible approach, “they just want issues resolved”, and emerging Can “a more creative... but nevertheless and that “It is necessary to adapt contract law disputes nipped in the bud quickly. rigorous approach” be adopted without institutions to the social reality of the moment.” prejudicing the need for legal certainty? The note The question remains how UK courts will react. Challenge for the law continues: “In many jurisdictions, procedural Finally Sir William Blair, former judge at the rules already encourage conciliation – can these Resolution first Commercial Court and a co-author of be developed further to give a breathing space? International arbitrator and former general both concept notes, highlighted some points The onus at least in the first instance would be counsel Wolf von Kumberg predicted that in the second note. Its focus was international

20 / August 2020 Sir William Blair Dr Eva Lein

commercial contracts and its aim was to prevent hearings should become the default, except for changing. “There are contract law solutions, and disputes “clogging up the system when we specific or very important disputes. there is flexibility in their interpretation.” She should be focusing on recovery”. I had noted Blair’s comment that concept note 2 recalled the Spanish case where the court adapted He observed that while English law had focused on international commercial contracts, and the law to the social reality of the moment: “but always taken a very commercial approach, this wondered to what extent it applied domestically. it’s the existing regimes that adapt, it’s not that the was a crisis “like no other”, which deserved a “Well, a lot of it certainly does,” he replied, judge invents something out of thin air”. response like no other, and the law had the “but I think what has changed in international responsibility of rising to the challenge. He commercial contracts over the last 30 or 40 Relational contracts proposed that where contracts are viable, the years is the whole concept of the supply chain... Another emerging idea is the use of long term emphasis should be on making them work. you’ve got the prospect of a disruption anywhere “relational contracts”, centred around parties If they are not, “we should be focusing on an in the chain disrupting the whole chain. If you committing to acting in good faith if unforeseen equitable solution to bring the contracts to an compare that with the domestic situation, broadly circumstances arise over a lengthy contractual end” – the current law of frustration being “not within that you are applying a single law, single relationship. Can that, I wondered, be applied to necessarily ideal”. emergency regulations and guidance, but in the the present situation, or is it for the future? In terms of legal principles, the courts should supply chain you’ve got a whole number that “It’s a very good question,” Blair replies. “We be open to finding implied terms in certain cases, may be relevant.” do not have, at any rate in the English branch of perhaps to allow a breathing space; and should the common law, any general doctrine of good be slow to find that contractual obligations had Judicial creativity? faith performance, and we will not introduce one. been waived by parties entering discussions How far should we encourage judges to be creative, There are reasons for that. One is that English with that aim. Further, “the time of mediation has something hinted at in the first note? Would that law is used surprisingly often in international come”, and though the courts had been slow to not go against the trend of recent Supreme Court commerce and finance, when parties that have encourage it in the absence of agreement, “we’ve decisions respecting parties’ bargains? no connection with England just adopt it as a really got to look at that again”. Blair disputed “that we are looking for the convenient law to apply. These parties want the courts to do anything other than courts have contract to be enforced according to its terms, Advice for advisers always done, which is to apply legal principle to and that’s why we take the position we do. Afterwards I spoke with both Sir William and changing circumstances”. Commercial certainty “But if you have a contract that lasts for say Eva Lein. remains key. “But what you’ve got to recognise 20 years, the parties can’t possibly anticipate all In response to my question, will legal advisers is that in this pandemic, working out what your the things that may arise; they won’t have been have to rethink their approach to dispute legal rights are is much more difficult... There anticipating a pandemic, obviously, but there will resolution, Lein pointed first to learning from has been nothing like this, so we can’t gauge as be lots of other more minor things they won’t have other jurisdictions, “because this is a crisis that clearly as we would like how legal liabilities are anticipated. Lord Leggatt, recently appointed to the affects all countries in similar ways and we can going to work out, and that is another very good UK Supreme Court, has said in a number of cases learn more from each other than we usually do”. reason for parties resolving their disputes by that at least for that kind of contract, the court She continued: “We should look more and negotiation or by mediation rather than having will expect parties to negotiate in good faith to try more at what happens elsewhere, how efficient full blown disputes.” If judicial decision-making and resolve issues that were unanticipated in a the solutions are elsewhere; and we also have to produces new results, that is the nature of the contract that lasts a long time.” think more about online hearings and technology common law process. in the courts” – with discussion whether online Lein suggested that legal concepts could be www.biicl.org/projects/breathing-space

August 2020 \ 21 CHILDREN’S HEARINGS

Relevant persons: the final word? The Supreme Court has affirmed that despite the importance of sibling relationships, they do not confer relevant person status before children’s hearings. Alan W Robertson believes the decision still places an onus on the authorities involved

he vexed question as XY had three siblings who were all (White & Hughes, Why Siblings Matter: The to who can fall within subject to a compulsory supervision Role of Brother and Sister Relationships in the definition of a order. The CSO, inter alia, regulated XY’s Development and Wellbeing (2018)).” relevant person (in contact with his three siblings. XY was not We are told later in the judgment that the T terms of s 81(1) of the afforded relevant person status (although importance of sibling relationships is not in Children’s Hearings it appears he was for a period of time), and dispute. The court however suggested that Scotland Act 2011) was thus argued that the provisions of the 2011 cases involving sibling contact were very an interesting subject that formed my first Act were in contravention of his article 6 few and far between. article with the Journal back in November and article 8 rights under the European Despite the court making so many 2014, and a notable number since. Since Convention on Human Rights. The Inner concessions, a line appears to have been then there has been a steady flow of House dismissed his appeal. drawn. The core of the ruling can be found reported appeals in this regard. However, the at para 45, where the court accepts that UK Supreme Court pronounced judgment in Important, but... the decision of Principal Reporter v K [2010] the recent decision of ABC v Principal At the outset, the Supreme Court noted UKSC 56; 2011 SC (UKSC) 91, relied on Reporter [2020] UKSC 26 (18 June 2020). the importance of siblings in terms of by the Lord Ordinary, was only intended There are a number of interesting their relationship to each other. The court to apply to unmarried fathers and to a observations that arise from the judgment. observed (at para 1): “Siblings can be as limited class of others with a significant The court was invited to consider two important as parents in the lives of those involvement in the upbringing of the appeals, brought by ABC and XY. Both who have them. While parents have been child. We are told further that this was appeals had been dismissed by the Inner likened to the doctors doing their ward subsequently enacted in the test set out in House of the Court of Session. rounds to see the bigger picture, siblings s 81(3) of the 2011 Act. ABC had a younger brother who was have been likened to the nurses: they subject to a compulsory supervision order are there every day. ‘These siblings are Further considerations that regulated his contact with ABC. ABC did often “fellow travellers” through adversity The court also appeared to be anxious to not have the status of a “relevant person” or significant life events; they can act as explain why it would not be appropriate for and therefore did not have the rights that a source of support for some children every sibling to be afforded relevant person he would have had as such. ABC lodged a and a source of conflict for others. For status. First of all, there a duty to attend petition for judicial review with the Court of these reasons, siblings are a potentially panel and court hearings. The failure to do Session. In short compass, the Inner House powerful influence on development…’ either could result in criminal sanctions being rejected the contention, upheld by the Lord taken against the relevant person. While Ordinary, that there was a requirement to there is no doubt the court is quite correct read down the provisions of s 81(3) of the about that, I would add that from my own 2011 Act, setting out who should be deemed “The court also appeared to experience, reporters appear to be disinclined to be a relevant person, to include the to seek warrants from panels – especially in words “or persons whose established be anxious to explain why it respect of a young, vulnerable person. family life with the child may be interfered would not be appropriate for To be fair, the court stated further with by the hearing and whose rights reasons why it would not be appropriate require the procedural protection of being a every sibling to be afforded to afford a sibling relevant person status. relevant person”. relevant person status” A relevant person has the power to accept

22 / August 2020 or not to accept grounds of referral. If Given that confidentiality is of the utmost upon Children’s Hearings Scotland, the there were a number of relevant persons, importance in the context of panels, it appropriate implementation authority, or alternatively, more than necessary, would be most undesirable for people who and Scottish Children’s Reporter this could result in disruptive referrals may not otherwise be entitled to it to have Administration. to the sheriff. However, even if that is access to that information. And that in turn But the main challenge here, as I see it, correct, it is not particularly common for appears to have been a significant point that is leaving too much in the hands of panel relevant persons to accept the whole of the the court founded on. At para 50, the court members. It was quite properly accepted supporting facts pertaining to the grounds. specifically pointed to the “dissemination of by the court that panel members are not In such case, it is quite proper for the matter sensitive information” as being a significant lawyers. They are not legally qualified. to be remitted to the sheriff for proof. factor against the proposed reading down of Therefore, this will continue to present Admittedly, having a larger number of the definition of a relevant person. challenges in terms of future panel hearings relevant persons than would otherwise where the issue of relevant persons will be accepted could theoretically result in Bespoke to the case arise. It is appreciated and accepted that a larger number of attendees at panel The court broadly concluded the case by panels by their own nature are not intended hearings. That would be undesirable for stating that it was necessary to have a to be legalistic and should focus on the a number of reasons. Reporters are duty “bespoke enquiry”, and that it was important interests of the child. Nonetheless, one bound to keep numbers to the minimum. At that the public authorities concerned were should not underestimate the importance the moment, there does appear to be a very aware of the interests of the child; the onus of ensuring that as a decision-making body, strong emphasis on that point by virtue of fell on such authorities to ensure that the they produce decisions that are lawful. hearings operating by means of the Vscene child’s interests were being met. We are not Looking forwards, there is no doubt that mobile app. told of course what is meant by a “bespoke the question whether a person is or should That in itself generates another issue enquiry”. I would take it to mean that we be a relevant person will continue to surface which the court was anxious to point should avoid any sense of generic hearings, in cases. The answer to clients as to whether out. It observed that relevant persons or perhaps simply rubber stamping they meet the criteria will not always be have “comprehensive access” to papers, decisions without first properly considering Alan W straightforward or clear cut. One might hope documents and reports about the child. matters. In any event, it is apparent from Robertson that the position of siblings in the context Normally, these reports (which are mostly the court’s attitude that the onus lies firmly is a senior of relevant person status has now been associate prepared by the social work department) on the public authorities to exercise good with MBS clarified. But then again, if in this matter we are fairly detailed and chronicle much of the and sensible judgment. By implication Solicitors, are required to have bespoke hearings, the history of the family and the background. therefore, the onus appears to rest firmly Edinburgh advice will have to be just that. Bespoke.

August 2020 \ 23 IN ASSOCIATION WITH LAROQUE SOFTWARE Letters in a digital age Sign&Send allows users to send letters by post in just three clicks

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Unfair prejudice – a game of two halves Tom McEntegart considers the litigation involving the Scottish football authorities and some of their member clubs, including its affirmation of the precedence of arbitration, and the principles of unfair prejudice likely to have governed the final (but private) decision

he recent dispute which continued over three days. It in having the issues aired in open court regarding the generated considerable media and public (a wish shared by the petitioners), his relegation of interest, even if the outcome for the Lordship found as a matter of law that he football clubs football fan was a less than satisfactory was not entitled to refuse the application to T Hearts and Partick score draw. sist on the grounds that the public interest Thistle was the The interest was understandable, should usurp the parties’ agreement. proverbial game of given the importance football plays as The parties had agreed to be bound two halves, the country’s national sport. However, by the terms of the SFA’s articles, which although not one for the football purists. the public and accessible nature of meant that the SPFL and the other The case concerned a joint legal bid the proceedings was also no doubt a respondents were entitled to invoke the by the two member clubs against the significant factor in keeping the dispute in arbitration provisions in the articles. As Scottish Professional Football League the spotlight. The hearing was streamed they had done so, the court was obliged (SPFL) to reverse their relegations, which online to what may well have been a to give effect to this. happened as a result of the coronavirus. record attendance for the Court of Session. Two other procedural issues were Following weeks of acrimony played considered by Lord Clark. The first out in the media about the merits or Court v arbitration concerned the motion by the respondents otherwise of the decision of the SPFL’s To the ordinary supporter, the hearing Dundee United, Raith Rovers and Cove member clubs to end the football season was no doubt disappointing, given Rangers to have the petition dismissed. early as a result of the pandemic, its inconclusive result. There were In refusing the motion, his Lordship made and the subsequent failed attempt at nevertheless a number of interesting clear that it was not appropriate to deal reconstruction to avoid any clubs being issues that Lord Clark was required to with such an application at what was relegated from their respective leagues, consider, the most significant of which essentially a procedural hearing, and that there was a sense of inevitability that being whether the dispute should be the issues would need to be properly legal proceedings would follow. dealt with by the court or by arbitration. developed in the pleadings and then Lord Clark’s conclusion – that he debated before such a motion could be Petition process was obliged to give effect to the parties’ properly considered. The first half was played out before the agreement as reflected in the articles The second was a motion by Hearts Court of Session, following the lodging of of association of the Scottish Football and Partick Thistle for recovery of a petition by Heart of Midlothian Football Association (SFA), which state that a documents. While recognising the need Club plc and Partick Thistle Football Club “football dispute” shall be settled by to respect the powers and duties of the Ltd: [2020] CSOH 68. The petition alleged arbitration – was not surprising, but arbitration tribunal, Lord Clark noted that the SPFL had conducted its affairs it was a welcome affirmation of the the importance of resolving the dispute in a manner that was unfairly prejudicial approach the courts take when faced with before the start of the football season on to them. such agreements. 1 August and decided to make an order Orders were sought in terms of s 996 Although he acknowledged the for recovery of the documents sought. In of the Companies Act 2006 to (1) considerable public and media interest doing so, his Lordship was requiring the suspend the written resolution that had parties “to put their cards on the table”. been passed to alter the rules of the SPFL insofar as it dealt with relegation Confidentiality of arbitration and promotion; (2) interdict the SPFL “The questions of who did what Somewhat frustratingly, although entirely from implementing the terms of the understandably given the procedural written resolution insofar as it dealt with when,... and whether what nature of the hearing, while the substance relegation and promotion; and (3) reduce happened constituted unfair of the dispute was referred to, it was not the written resolution in that respect. explored before Lord Clark. The case called before Lord Clark at prejudice remain unanswered, The frustration at not hearing the the start of July at a by order hearing at least in public” respective arguments on whether the

26 / August 2020 (1) The conduct must be both prejudicial and unfair. It is not enough to have one without the other. (2) The prejudice must be to the interests of the shareholder in their capacity as a member, not in any other capacity. A failure to pay salary is not unfair prejudice. (3) A member of a company will not ordinarily be entitled to complain of unfairness unless there has been some breach of the terms on which they agreed that the affairs of the company should be conducted (although unfairness may arise if the rules are breached or the rules are used in a manner that would be contrary to good faith). (4) Unfairness is an objective concept, to be judged according to established equitable principles, and requires the conduct complained of to be such as is contrary to good faith. (5) The petitioner’s conduct is also relevant when assessing whether any prejudice is unfair.

Valid procedure The conduct complained of in the petition SPFL’s actions were unfairly prejudicial and the speech of Lord Hoffmann. His was the decision of the member clubs was exacerbated by the knowledge Lordship deals with the meaning of of the SPFL on 15 April 2020 to pass a that the second half was to be played unfair prejudice in the context of s 459 written resolution that altered the rules of out behind closed doors in front of of the Companies Act 1985, although it is the SPFL. The resolution was passed after the arbitration tribunal appointed in accepted his reasoning applies equally to Dundee withdrew its previously-submitted accordance with the SFA’s articles s 994 of the 2006 Act. no vote and voted yes, allowing the of association. Lord Hoffmann commented that context resolution to pass. The resolution relegated The questions of who did what when, is crucial: conduct that is perfectly fair in a Hearts and Partick Thistle from their why Dundee changed its no vote to a business context may not necessarily be respective divisions, and promoted Dundee yes vote to carry the resolution, and fair between family members. A company United, Raith Rovers and Cove Rangers. whether what happened constituted is formed for economic reasons, usually Central to the arbitration tribunal’s unfair prejudice remain unanswered, at with legal advice. decision would have been whether the least in public. The arbitration process At pp 1098-99 he states that “a resolution was validly passed, and in is confidential and information about member of a company will not ordinarily particular whether the no vote originally the process can only be disclosed in be entitled to complain of unfairness submitted by Dundee should have limited circumstances, including where unless there has been some breach counted, instead of it being withdrawn disclosure is authorised by the parties or of the terms on which he agreed that later that same day to be replaced the is in the public interest. the affairs of the company should be following week by a yes vote. In the week leading up to the start conducted. But... there will be cases in Had the no vote stood, the resolution of the 2020-21 football season, the which equitable considerations make it would not have been passed and neither arbitration process was concluded unfair for those conducting the affairs of Hearts nor Partick Thistle would have with the claim of unfair prejudice being the company to rely upon their strict legal suffered the prejudice caused by their rejected by the arbitration tribunal. While powers. Thus unfairness may consist in a relegation. the decision has been made public, the breach of the rules or in using the rules in Being relegated to a lower division tribunal’s reasoning for its decision has a manner which equity would regard as of the SPFL will cause financial harm to not. In arriving at its decision the tribunal contrary to good faith”. both clubs. will have needed to consider the meaning While cases of unfair prejudice are If the no vote was validly withdrawn, of unfair prejudice and whether the highly fact specific, and cover a wide the resolution altering the SPFL’s rules conduct that Hearts and Partick Thistle range of circumstances – everything and relegating Hearts and Partick Thistle complained of met this test. from the improper withdrawal of funds, to was lawful and did not amount to unfair the diversion of business or commercial prejudice. Unfair prejudice opportunities to another company in The tribunal’s decision indicates that Tom McEntegart So what is unfair prejudice? The leading which the respondent had an interest – Dundee was entitled to withdraw its no is a solicitor authority is the House of Lords decision there are certain principles that can be advocate and vote and that the subsequent resolution in O’Neill v Phillips [1999] 1 WLR 1092, identified from the authorities: partner at TLT LLP of the SPFL was validly passed.

August 2020 \ 27 MAINTENANCE CLAIMS

Claims from over the border: the Villiers legacy In the wake of the Supreme Court decision in the Villiers maintenance claim, Elizabeth Ahmad and John West compare the options available to parties in Scotland and England, and highlight some considerations for Scottish advisers

n the day when Divorce v maintenance time requirements for being “habitually Boris Johnson The first thing to be aware of is that there resident”. The necessary habitual residence averred that there are different jurisdictional rules for divorce can be acquired swiftly. was “no border” and maintenance claims. Given these differences, it is important to between Scotland The jurisdictional rules for divorce derive have an understanding of the differences O and England, the from Brussels IIa (Council Regulation (EC) north and south of the border. Supreme Court No 2201/2003 concerning jurisdiction issued its judgment and the recognition and enforcement of The English perspective in Villiers v Villiers [2020] UKSC 30 (1 July judgments in matrimonial matters and Financial claims on divorce in E&W 2020). Border or no, Villiers illustrates how the matters of parental responsibility). If the parties had last resided together in different family law is in Scotland and Those rules have direct effect and E&W, and the English courts had been England & Wales, and the importance of are referred to in the Domicile and dealing with the divorce, the financial understanding the different jurisdictional Matrimonial Proceedings Act 1973. That outcome would be very different. The court rules for divorce and maintenance claims. Act also provides the rules for allocation in E&W has wide discretionary powers on Villiers settles that there can be of jurisdiction where there are competing divorce to make such orders for capital contemporaneous proceedings in more than proceedings in “related” provision, including pension sharing, and for one of the constituent parts of the UK. (UK) jurisdictions. If there maintenance as it thinks are “reasonable in There is a long and rather tortuous are proceedings in more all of the circumstances of the case”. The history to the case, but the headlines are: “Villiers than one part of the UK, court’s focus is on meeting the “reasonable” • Mr and Mrs Villiers lived for most of illustrates the those that will prevail needs – housing and income – of the their marriage in Scotland and were living in are those in the place parties, not dividing the value of property Scotland when they separated. importance of where the couple last built up during marriage. The courts in • A free-standing maintenance claim was understanding resided together. E&W will amalgamate any pre-marriage made by Mrs Villiers in E&W (and the case The jurisdictional period of cohabitation with the time that the was an appeal against orders made in her the different rules for free-standing parties have been married (up until divorce, favour by the English courts). jurisdictional maintenance claims so there is no “relevant date”, either). There • A divorce application, making no derive from the is no automatic exclusion of pre-marital, financial claim, was made by Mr Villiers in rules for Maintenance Regulation inherited or gifted wealth. Scotland (which remains sisted). divorce and cited above. These In appropriate cases, the powers can • The Supreme Court decided that the obviously have direct include making a spousal maintenance English courts had exclusive competency maintenance effect, and appropriate order for “joint lives”, that is until one of the to deal with all maintenance claims arising claims” changes were made parties dies, the recipient remarries or the from the marriage and separation, given to the Civil Jurisdiction court orders otherwise. that the English court was first seised of and Judgments Act the issue of maintenance, and that the 1982 after the Maintenance Regulation was Claims not related to divorce maintenance claim itself was not a “related brought into force. The UK went further In Villiers, Mrs Villiers was not able to action” to the divorce application for the than just incorporating the Maintenance avail herself of English law for her divorce purposes of article 13 of the Maintenance Regulation as between itself and EU and ancillary financial provision, though, Regulation (Council Regulation (EC) No member states, though, incorporating the and it was necessary to turn to another, 4/2009 on jurisdiction on applicable law, same rules intra-UK (in the Civil Jurisdiction standalone, maintenance remedy – what recognition and enforcement of decisions and Judgments (Maintenance) Regulations is often called a “failure to maintain” and cooperation in matters relating to 2011). The jurisdictional grounds for the application, under s 27 of the Matrimonial maintenance obligations). person seeking maintenance include Causes Act 1973. This is not a direct • The Scottish courts retain exclusive being able to sue (a) in the place where comparator to a standalone aliment claim, competency to deal with the merits of the the defendant is habitually resident; or (b) and like the remedies available on divorce, divorce and all other financial claims. where they – the maintenance creditor – it is likely to give more generous provision Why is this the outcome and what are are habitually resident. to the dependent party than they would get the implications? It is important to note that there are no in Scotland.

28 / August 2020 An application under s 27 is a claim made • a carer’s allowance for the person who example, if the financially weaker party by one spouse against the other on the looks after the child. is in Scotland, think long and hard before basis that he/she has failed reasonably to An application can be made by the parent moving to E&W and giving them jurisdiction maintain the applicant. There need not be of a child; a step-parent where the child to raise in E&W); and (3) trying to ensure any divorce, nullity or judicial separation has been treated as a child of the family; a swift progress of the Scottish divorce action proceedings in existence: this is a self- guardian or special guardian of the child; (given that the s 27 application must be standing application. or any person who is named in a child made before the divorce). What is required at a practical level? arrangements order as someone with whom The application requires a statement the child lives. Acting for the financially dependent party justifying the financial provision sought. The child, if aged over 18, can make Get the client to take advice in E&W. Always. A court fee of £255 is payable. Financial an application themselves in certain Even if you know that it will be a Scottish disclosure needs to be given by both circumstances. divorce. Can your client move if they would parties. The court can make orders for the An application can be made against a be better off in E&W? maintenance needs of the applicant or for parent or parents, or a current or former step- Both Lord Sales and Lady Black the benefit of a child of the family (subject parent where the child has been treated as underline that it is for the maintenance to the jurisdiction of the CMS in the case of a child of the family. It is made on a standard creditor to choose where to litigate a child). Orders can be made for: form and a court fee of £215 is payable. The (assuming they can satisfy the jurisdiction • maintenance, and/or court directs financial disclosure by both hurdles), and Villiers does make it harder for • lump sum provision, and/or parties and has a wide discretion in assessing a payer to try to seise jurisdiction tactically. • legal costs on an ongoing basis. the appropriate orders to make. It can again As important as the Supreme Court The court can make an order for interim make an interim maintenance order, and it judgment is, the next stages in the High maintenance. The application may be made can order one party to meet the other party’s Court in E&W and Dumbarton Sheriff at any time, provided the parties are still costs of the litigation on an ongoing basis. Court are what matter to the Villiers – will married. The court can make an order for the Scottish courts allow the sist to be maintenance for such term as it thinks fit, and The Scottish perspective continued pending the outcome of the this can endure beyond the marriage itself. The regime for financial provision on English proceedings, or will it be a race to The other type of maintenance claim that divorce/dissolution in Scotland is well divorce/final orders in E&W? If she is not can be made on a free-standing basis is an known, and the extent to which there is divorced before the English application is application for capital and/or maintenance maintenance beyond divorce (i.e. a periodical heard, will the court make an order in Mrs for the benefit of a child, under sched 1 to allowance) is limited, with the Scottish Villiers’ favour that outlasts her divorce? the Children Act 1989. courts being obliged to prefer a clean break A sched 1 order can provide: on divorce. As a result there are some key • money to be settled on trust to provide points to consider when advising clients with or contribute towards the costs of housing the potential for cross-border actions: a child; • any number of lump sums designed to Acting for the financially independent party meet the capital needs of a child (such as When acting for the would-be payer you for a car or furniture); will want to ensure that the scope and • educational expenses for a child; incentive for the creditor to pursue a claim Elizabeth Ahmad is a paralegal with Pennington Manches Cooper, who act for • expenses connected with the disability in E&W is minimised, by (1) continuing to Mrs Villiers in England & Wales. John West of a child; aliment the other party; (2) being careful is an associate with SKO Family Law • maintenance orders for a child (subject to about what steps you take, and are seen to Specialists, who act for her in Scotland. the jurisdiction of the CMS); take, in relation to habitual residence (for

August 2020 \ 29 Briefings

Coronapocalypse? if both sides were properly prepared with full Sentencing young offenders disclosure, issues were focused, reasonable pleas COVID or no, there are still a few appeal cases Some musings on the continuing offered or the length of trials envisaged better to keep this column going for now, but there effects of COVID-19 to open this estimated. The aspirational model suggested may be a gap in 2021 before trials pick up again. month’s criminal procedure briefing that only custody accused appeared at court in Ahead of the end of the consultation period are followed by cases on sentencing, the first instance, and thereafter the only court on 21 August of the Scottish Sentencing Council appearance should be to tender a guilty plea or guideline on young people, Lady Dorrian sufficiency of evidence, domestic abuse for a trial to take place. I doubted the practicalities delivered the opinion of the court in the appeal and, inevitably, Moorov of that vision, but it may come to pass. I did think, against sentence Hay v HM Advocate [2020] since the public had been weaned on the Diary HCJAC 30 (8 July 2020). The appellant was Room in Big Brother, could we not have court 20 at the time, and at time of sentencing, having outstations where punters and their solicitors pled guilty to a charge of murder involving could have cases called and dealt with without breaking into a house and repeatedly stabbing Criminal Court having to travel into the Big City? the occupant, after being involved in a five-day Jury changes have been discussed over the alcohol and drugs binge. FRANK CROWE, years, but the reduction in jurors from 15 to The guilty plea came at a continued SHERIFF AT EDINBURGH perhaps 12 was shelved and the abolition of preliminary hearing about six months after the “not proven” seems to have stalled. An early incident, following a continuation for defence The thing about the pandemic and lockdown coronavirus push to abolish juries was seen as enquiries into the appellant’s psychiatric is that it has created lots of new words like a step too far too soon, and the wartime jury of condition. The sentencing judge fixed the “covidiot”: a person “who ignores the warnings seven, requiring five for guilty, may not be on punishment part of the life sentence at 19 years, regarding public health and safety”, or “who the policymakers’ agenda either. Models for a reduced from 20 years for the plea. hoards goods, denying them from their three courtroom jury trial are unsustainable long The Appeal Court recognised this was neighbours”. There are others like “Blursday”, term, just as limiting pub or restaurant customer a serious, unprovoked and distressing offence, which connotes that sense of loss of reality numbers to comply with physical distancing are aggravated by having been committed in when the routine of work wanes and one day ultimately uneconomic. We shall see... the victim’s own home in the presence of seems much like another, particularly if you are Meantime, I recently saw my grandchildren, members of his family. However, bearing in furloughed. my older daughter’s brood of five, for the first mind the appellant’s youth, lack of maturity As we move into transition, new words time in five months. The oldest, now 10, seemed and underdeveloped sense of responsibility, it are being invented to cope with these to have developed a keen sense of fairness and set the headline figure at 18 years and gave a “unprecedented” times. (I know some people was critical of some of the school rules. I bought discount of two years, resulting in a punishment scream at the overuse of this exceptional word.) her a copy of the Ladybird guide to Baroness part of 16 years. The court stressed the Can I offer, as things reopen, the Hale, alias Equal to Everything – Judge Brenda considerable utilitarian value in a plea of guilty “covidexcuse”? At the local supermarket when and the Supreme Court. It was written to inspire to a charge of murder. buying a few essentials like a copy of the more women to enter the profession, but it Racing Post (no more doomscrolling for me), produced results much quicker than anticipated. Common purpose and some square sausage to bolster me for my Last month, during lockdown, purple paint Sufficiency of evidence was in question in 10,000 steps and 10 staircases a day, I proffer was found splashed on the bathroom door. Douglas v HM Advocate [2020] HCJAC 23 my debit card as it is the preferred option, but Suspicion fell on Leila, aged four and a half, who (10 June 2020). The appellant and his co- when I ask for £20 cashback I am told this had been spotted in the vicinity and was found accused were convicted of two similar offences service is no longer on offer “due to COVID”. At to have a purple stain on her arm. She was put committed near to each other in Aberdeenshire the big supermarket, the recycling centre has on trial by her peers. Isla, 10, was the judge on the same day, involving forcing their way into been closed, but at least you get a trolley free complete with makeshift wig and a gavel that all homes, demanding money and drugs, assaulting – due to COVID. My older daughter, who lives the lieges are disappointed to find are not used the occupants with knives to severe injury and in Sussex, noticed a takeaway with the legend by UK judges. Merryn, seven, was a fearsome permanent disfigurement and robbing them of outside: “Cash payments only due to COVID.” looking court police officer, and Jago, eight, and mobile phones and other property. The second Aye right! Astrid, two and a half, the jury. A verdict of guilty charge also involved the use of an axe and But what of the future? How does business was swiftly returned and a community sentence libelled attempted murder. restart? Time to look back to blue sky thinking, imposed. May I offer this as a social bubble There seemed to be ample evidence for the what was once politically, socially and model? The dignity of the court was maintained, first charge, which involved both accused and organisationally difficult but might now float in give or take a bit of thumb-sucking by some of occurred about 9am, but in the second incident, the perfect storm. A few years ago there were the participants. which took place at 9pm, the complainer was some controversial court closures, but now like unable to identify any of the three assailants. He other organisations, too many branch offices did hear a fourth male speaking about them all and cost centres are so “pre-Corona” (I don’t getting out of there and shortly afterwards the think they can sell that beer any more). Some “Is it time to dust down men left and a car was heard accelerating away. agents have not been in court since mid-March the proposition paper A neighbour was able to corroborate men – it’s all virtual. entering the house and one of them demanding Is it time to dust down the proposition paper A New Model for drugs. She saw a car driven off shortly A New Model for Summary Criminal Court Summary Criminal afterwards and gave a vague description. CCTV Procedure from February 2017? evidence linked the appellant to a green car Intermediate diets were seen by many as Court Procedure from seen nearby. The second complainer’s blood a waste of time, but I always felt they could work February 2017?” was found on a rear interior door release. There

30 / August 2020 that this was a single crime, in accordance Frank Crowe’s grandchildren found their sister guilty of with the wording of s 38. There required to vandalism after a trial be corroborating evidence of that course of conduct, i.e. evidence of two or more incidents referred to in the libel from which the jury could conclude they were not isolated acts but truly part of a course of conduct. Corroboration of one incident alone might be sufficient for corroboration of the crime restricted to that one incident, or single act, but not for a course of conduct. Save for the deletion of one locus for which there was no evidence of criminal conduct, the appeal was refused. Moorov: similarity of charges My final case for this month inevitably involves the application of the Moorov doctrine. In Mohammed v HM Advocate [2020] HCJAC 27 (17 June 2020) the appellant faced three charges at trial: (1) a rape in May 2009; (2) an indecent assault between October 2009 and October 2010; and (3) a rape in December 2009. He was acquitted on charge 1. Charges 1 and 2 were said to have occurred in the appellant’s car when it was forensic evidence linking co-accused with The couple met at the start of this period, moved was parked in the Perthshire countryside. The the recovery of stolen property. in together in June 2014 and married in 2016. A first charge involved holding the complainer The appellant’s position was that he “was daughter was born in October 2017. down, lying on top of her and raping her. there” but did not do it. The Crown case on the The complainer spoke to various incidents In charge 2 the appellant, complainer and second charge was circumstantial and based of threatening and controlling behaviour. Her another drove to a remote area to smoke on an allegation of antecedent conduct. It was sister spoke to the majority of these, and further cannabis. The other person fell asleep. The accepted the appellant was either one of the corroboration came from text messages where appellant took alcohol and a duvet from the three active participants or the fourth person. the appellant apologised for his behaviour car boot; the complainer declined a drink. It Giving the opinion of the court in one of his and promised it would not continue. A friend was snowing outside so the couple lay under last judgments before retiring, Lord Brodie corroborated the complainer’s account of an the duvet. The appellant started to touch the considered the appellant was not simply incident towards the end of December 2017. complainer’s leg. She pushed him away and was a bystander but was part of a group who acted A submission of no case to answer was repelled scared. He then fell asleep. together in pursuance of a common criminal by the sheriff. The trial judge considered that whilst the purpose, namely to rob the complainer of In his charge, the sheriff commented that indecent assault was less serious than the drugs and other property using violence. They because the incidents had occurred at home, rapes, there were similarities between the two had arrived in a car at the complainer’s house, there was inevitably a lack of corroboration for episodes as the complainers were offered wine immediately got out and ran into the house some of them and this had shaped the Crown’s he had brought with him and both episodes wearing dark clothes with balaclavas, some approach. He directed the jury that it was not occurred at night. Charge 3 occurred in the carrying weapons, and there was the shout “give enough for the Crown to describe the events complainer’s flat when she was asleep and me the drugs”. The inference that the appellant as a single course of conduct; they had to be incapable of giving or withholding consent. was party to an agreement to attack and rob the satisfied of that. The incidents were close in time. complainer was well nigh irresistible. The defence submitted that the incidents While at the close of the Crown case there The evidence of the appellant’s involvement occurred over a period of nearly four years and was a sufficiency of evidence in respect of all in a similar incident earlier in the day was not were separate events each of which required three charges, once the jury had acquitted necessary for sufficiency in the other charge, corroboration. The Crown suggested that of the first charge they were left with two but strengthened the inferences which could be whether the circumstances were a single course charges where the nature of the allegations, drawn. The appeal was refused. of conduct was a question of fact and degree, circumstances of commission and locus were and this was accepted by the court. all quite different. The similarity of both events Domestic abuse Except in a Moorov context involving mutual occurring at night was neutral. The trial judge Domestic abuse remains high on the agenda in corroboration, the phrase “a course of conduct” had an ongoing duty to review questions of the sheriff court. Finlay v HM Advocate [2020] has no significance in relation to sufficiency of law such as sufficiency of evidence as the trial HCJAC 29 (25 June 2020) is another example evidence and the individual acts referred to in a proceeded. The jury should have been directed of the complexities which can arise when an charge require to be corroborated. that if they acquitted on charge 1 they could not exceptional latitude features in the charge. It However in the present case, the charge was convict on either charge 2 or 3. There had to be involved allegations of threatening or abusive a statutory one, and one manner of committing an overall similarity in the conduct identifying behaviour contrary to s 38(1) of the Criminal the offence involved a course of conduct: each charge as a component part of a course of Justice and Licensing (Scotland) Act 2010 by the s 38(3)(b)(ii). The use of the phrase “a single conduct persistently pursued by the accused. appellant towards his partner, later wife, from episode” was apt to cause confusion in this The appeal succeeded and the convictions February 2014 until the end of December 2017. context and “course of conduct” better conveyed were quashed.

August 2020 \ 31 Briefings

reasonable Employment responses for an CLAIRE MCKEE, ASSOCIATE, DENTONS UK employer to & MIDDLE EAST LLP preserve the anonymity of the The law on unfair dismissal in Great Britain tenant. Further, it was was originally introduced under the Industrial not the case that the Relations Act 1971. Advising as to whether or tenant had refused to provide not a dismissal is likely to fall within the band additional evidence; she had of reasonable responses is something which simply declined to provide employment lawyers deal with day in, day out. evidence on the one occasion Now and again, a case reaches the Employment she was asked. The case has been Appeal Tribunal (EAT) which shows that there remitted to a different tribunal for are still shades of grey in what is generally re-hearing. considered to be a settled area of the law. In the recent case of Tai Tarian Ltd v Christie Commentary [2020] UKEAT 0059_19_0303 (3 March 2020), Although the witness in this case was the EAT considered under what circumstances a tenant, a more common scenario is number of an employer can rely on anonymous where a witness is a colleague of the restaurants and statements during disciplinary investigations. employee under investigation and will only invested in commercial The claimant, Christie, was employed as provide information if they are first given property, such that at a carpenter by the respondent (a housing anonymity. The cases on this issue are clear separation the matrimonial association) for 14 years. One of the that anonymity does not necessarily make a property was worth in excess of £10 million, respondent’s tenants complained that Christie dismissal unfair, but the employer must balance the vast majority of which he owned. Mr A held had made homophobic remarks while carrying the need to protect the identity of the witness his assets in shares in a holding company, out maintenance work in one of their properties. with the need to provide a fair hearing for the as an individual/sole trader, and as part of a Two interviews were subsequently held with employee under investigation. partnership with his elderly father. He operated the tenant, who requested anonymity as she Acas (in its Conducting Workplace each restaurant through a limited company, suffered from anxiety. A disciplinary hearing Investigations guidance) advises that anonymity each company’s shares being owned by the followed and the decision was taken to dismiss should be avoided where possible, as it is holding company. Money was freely moved Christie for misconduct. The decision-making likely to put the investigated employee at a around by way of inter-company loans on managers were not able to interview the tenant disadvantage. The guidance says an investigator Mr A’s instruction as and when cash flow – this was requested once at the appeal stage should only consider anonymising witness dictated a need. but the tenant refused for personal reasons. statements where the witness has a genuine Mr A argued that each business had to be fear of retaliation. valued within that structure, including valuing Reasonable response? While this case acts as a reminder that there some restaurants on the basis that they were Christie raised a claim for unfair dismissal, are limited circumstances in which it will be merely tenants even though Mr A was the alleging that the dismissal process was unfair reasonable for an employer to withhold the landlord. Mrs A led evidence from C, an expert because of the reliance on the evidence of identity of witnesses, employers looking to do surveyor, specialising in the restaurant and an anonymous witness. The Employment so should still proceed with caution. licensed premises trade, and argued that Mr A Tribunal (ET) upheld his claim, finding that the was the “controlling mind” of all the businesses investigation was unreasonable and the decision and therefore the court should collapse the to dismiss “based solely upon the complaint of corporate structure, combining Mr A’s interest an anonymous tenant… fell beyond the band in the heritage business assets into one as of reasonable responses open to a reasonable that was within Mr A’s power, apart from one employer of a similar size and with similar property owned with his father as trustees for administrative resources”. The ET held that it Family the partnership with him and leased to one was also unreasonable for the respondent to FIONA SASAN, PARTNER, business. In respect of that property, it was have relied on the anonymous account and to MORTON FRASER LLP argued that the father would likely agree to have preferred that evidence when the tenant a sale on a willing seller-willing buyer basis as had not been interviewed by either of the he would be unlikely to stand in his son’s way if relevant decision-makers and had refused to The recent decision of Lady Wise in SMA v MMA he wanted to sell. Mr A senior’s share would be provide any additional information. [2020] CSOH 54 (28 May 2020) highlights the accounted for in the valuation. The respondent appealed this decision and importance of getting the instruction of your the EAT allowed the appeal. The EAT found expert witness right and ensuring they are Independent expert? that the tribunal had erred in its findings on provided with all the salient information before Mr A led evidence from his own expert the question of fairness. It concluded that the they give evidence. This was a particularly surveyor R, who did not assess the group of ET had not demonstrated any “logical and complex case because of how the assets were businesses as a whole but valued them as substantial grounds” for its conclusion that held, which meant that expert evidence was individual going concerns on leasehold at lower the respondent could not have reasonably central to the dispute. values and the heritage separately. During the accepted the tenant’s evidence as truthful. In Mr and Mrs A had been married for 29 years. proof, R accepted that he had issued terms of the circumstances, it was within the band of Throughout their marriage Mr A operated a engagement to Mr A in the format of agent/

32 / August 2020 client and not as a professional expert witness IN FOCUS whose primary duty was to the court. R’s report was absent the usual statement about being independent with a duty to the court, and his letter set out a client complaints process for his firm, which would not apply to a surveyor ...the point is acting as an expert witness. R had also accepted instruction to conduct a valuation for Mr A’s bankers after the proof for the purpose of raising capital to pay Mrs A, which he had to change it factored into his quote for his services. Brian Dempsey’s monthly survey of legal-related consultations After C’s evidence had been led, R had met with Mr A and his representatives and subsequently reviewed downwards the Local government limits. See consult.gov.scot/private- multiplier he had used, saying he had been To inform its stage 1 consideration, law-unit/prescription-commencement- further convinced of Mr A’s “remarkable Parliament’s Local Government & regulations/ contribution” to the business and that it had Communities Committee seeks views Respond by 14 October via the above been understated in his valuation, even though on Green MSP Andy Wightman’s web page. R accepted he had never come across such European Charter of Local Self- a concept in any previous valuation and that Government (Incorporation) (Scotland) account had already been taken in valuing Judicial retirement age Bill. The bill would incorporate the the fair maintainable operating profit under The Lord Chancellor seeks views on the Charter, which sets out principles a reasonably efficient operator (REO) on the mandatory retirement age for judges, to protect the basic powers of local assumption that Mr A left the business on sale. and specifically on whether age 70 authorities, into domestic law. See www. R was seeking to factor in something on the achieves the objective of balancing parliament.scot/parliamentarybusiness/ basis that Mr A’s contribution was so stellar that the requirement for sufficient judicial CurrentCommittees/115604.aspx the REO assumption was simply not adequate to expertise with promoting diversity and Respond by 17 September via the above reflect the impact of Mr A’s departure on profit. protecting the independence of and web page. For Mrs A it was argued, under reference confidence in the judiciary. Although to the approach in Kennedy v Cordia (Services) mainly concerning England & Wales, the 2016 SC (UKSC) 59, that R’s evidence could Criminal injuries consultation includes both the Supreme not be described as impartial and that he had The UK Ministry of Justice is conducting Court and employment judges. In addition, effectively acted as an advocate for Mr A. a comprehensive review of the Criminal there is a strong assumption that the Injuries Compensation Scheme, the first mandatory age should be uniform across No reliance since 2012. See consult.justice.gov.uk/ the UK jurisdictions. See consult.justice. Rejecting R’s evidence and accepting C’s, Lady digital-communications/criminal-injuries- gov.uk/digital-communications/judicial- Wise decided: “In light of the unsatisfactory compensation-scheme-review-2020/ mandatory-retirement-age/ nature of [R’s] change of heart on valuation, Respond by 9 October via the above Respond by 16 October via the above the backdrop of the absence in his report to web page. web page. his duties to the court and the other errors mentioned take on more significance than they might have otherwise. I do not doubt [R’s] Planning for housing Land Court/Lands Tribunal general motivation of course, but in light of Scottish ministers, in pursuit of their The is asking the evidence about how his views developed “plan-led planning system” commitment, whether it would be wise to incorporate I consider that he has allowed himself to be intend to update parts of the Scottish the Lands Tribunal for Scotland into the influenced by [Mr A’s] views on the matter. Planning Policy (SPP). The objective . In addition, views are As a result, he departed from the necessary is “to overcome current conflict in the sought on recusals by legal members, the position of impartiality of a witness giving planning system and actively address necessity for a Gaelic speaker, and powers opinion evidence and appeared to promote the lengthy technical debates about the to award expenses. See consult.gov. defender’s cause on valuation… I am effectively numbers of homes that we will need scot/justice/land-court-and-the-lands- left with no definitive valuation by [R]. For all in the future”. See consult.gov.scot/ tribunal/ these reasons I have concluded that I cannot planning-architecture/proposed-policy- Respond by 19 October via the above rely on his evidence at all and so cannot use amendments/ web page. any of his figures for the purpose of valuing the Respond by 9 October via the above various business interests.” web page. …. and finally It further transpired that Mr A’s expert As noted last month, the Government forensic accountant, valuing the shares in the Prescription seeks views on raising the age limit for corporate entities, had relied on R’s valuations, The Government seeks comments on how referral to children’s hearings from 16 was unaware of certain figures which had since to commence the Prescription (Scotland) to 18 (see consult.gov.scot/children-and- been agreed between experts during proof and Act 2018, which makes a number of families/age-of-referral-to-the-principal- had not considered all the other reports, and so changes to negative prescription time reporter/ and respond by 7 October). his evidence had to be disregarded also. This case illustrates the importance

August 2020 \ 33 Briefings

of demonstrating the independence of your of permission without appointing an oral Moreover, it makes clear that when assessing expert witness at proof. It is also notable for hearing. Even when article 6 applied with the legitimate aim and proportionality of any the application of an unequal sharing of the full force, whether an oral hearing could be human rights interference, the court will look value of the net matrimonial property, based on dispensed with would depend on the nature to the background of the statutory provisions in a 58:42% split to account for source of funds and complexity of the case and whether it question and have cognisance of the particular arguments. That will be seen as a shift from could be disposed of fairly without a hearing. mischief to be addressed. the more recent reported cases which have The court observed that the application of evaluated source of funds more forensically and sift-type procedures was seen as necessary deducted from the net value to be shared. and proportionate in order to avoid wasting Morton Fraser acted for the wife pursuer “precious judicial resources” on cases where in this case there was no real prospect of success, and that such systems were article 6 compliant provided the case could be dealt with fairly on Pensions the papers. JUNE CROMBIE, In the context of judicial review provisions, the HEAD OF PENSIONS court ruled that the second Lord Ordinary must, SCOTLAND, DWF LLP Human Rights in light of the stated grounds in the petition, again ask himself whether the appointment ROSS CAMERON, of an oral hearing would make any difference Hughes: PPF compensation cap SENIOR SOLICITOR, LLP to the decision to refuse. Where the question Protection of the rights of qualifying pension was simply one of determining whether the scheme members on insolvency of sponsors of error of law, which ought to have been clearly eligible defined benefit pension schemes dates In Prior v Scottish Ministers [2020] CSIH 36 identified in the petition, had any real prospects from the Pensions Act 2004, which established (30 June 2020), the Inner House rejected the of success, this system was designed to achieve the Pension Protection Fund (“PPF”) – arguably petitioners’ submission that ss 27B-27D of fairness in the decision-making process. There to implement article 8 of Directive 2008/94/EC, the Court of Session Act 1988 required a Lord was no reason to suppose that it did not do which provides pension protection on employer Ordinary, when considering a request for a so, as it did not impair the very essence of the insolvency. The directive did not prescribe review of an earlier refusal by a different Lord right of access to a court. Rather, it provided either the protection required or how that Ordinary of permission to proceed in a petition a route to the court other than in circumstances should be achieved. for judicial review, to appoint an oral hearing. in which two different judges had considered The PPF pays compensation based on The court dealt with a number of issues that there was no real prospect of success. categorisation at the point of the employer’s of both substance and procedure. Inter alia, it In assessing the proportionality of the insolvency. Members who had reached normal addressed (1) whether on a construction of the relevant judicial review provisions, the court pension age under their original scheme rules statutory provisions regulating judicial review, observed that regard had to be had to the it is competent for a second Lord Ordinary considered process through which they to refuse a request to review a refusal of emerged. The particular mischief that was permission without appointing an oral hearing; sought to be addressed was the excessive time and (2) if the legislation did provide that a being taken up in listening to oral argument on petitioner may be refused permission without petitions which had no real prospect of success. an oral hearing and hence a right of appeal, The statistics showed that refusals such as whether that is ECHR compatible. were complained of represented just over 10% The reclaimers had previously raised of the total number of petitions lodged, which petitions for judicial review in which permission demonstrated a reasonable relationship of was refused on the papers, and a subsequent proportionality between the means employed request for review at an oral hearing was (the scrutiny of two different judges and a rejected by a second Lord Ordinary. They defined test for the grant of permission), and the reclaimed against the refusal of their petitions aim sought to be achieved (the early elimination for declarator that ss 27B-27D were unlawful in of petitions without merit and the consequent so far as they did not permit an oral hearing or preservation of judicial resources). right of appeal in some cases. The primary basis of their challenge was that the legislation and Commentary the rules guaranteed a petitioner an oral hearing This is a significant decision in the context of on the issue of permission and a right of appeal human rights law in Scotland. It is clear that in the event of a refusal. They argued that if the the ability of a second, different Lord Ordinary court took the view that there was no right to an to refuse, without an oral hearing, a request for oral hearing and, therefore, no right of appeal, a review of a refusal by another judge to grant the 1988 Act was incompatible with the right of an application for permission, is lawful and access to a court under article 6. proportionate. Whilst the current case is concerned with Necessary and proportionate article 6 rights in the context of judicial review, Refusing the reclaiming motions, the court it serves as a reminder that the overarching held it competent for a second Lord Ordinary principle of fairness is key and all human to refuse a request for a review of a refusal rights issues are always highly fact sensitive.

34 / August 2020 at that point would receive 100% compensation • whilst article 8 does not require a yearly (based on original scheme benefits), albeit comparison, any scheme adopted by the PPF Scottish Solicitors’ inflationary increases are materially lower. must actually deliver compensation equal to Discipline Tribunal However, if a member was under normal 50% of the amount of benefits a member/ pension age, PPF compensation was generally survivor would have received under their WWW.SSDT.ORG.UK limited to 90% of benefits, and subject to an original scheme – not 50% of the actuarially absolute cap. As a result, some members’ predicted value. However, the “precise benefits were materially reduced. Earlier mechanism” to achieve compliance was not John Christopher Bartlett cases challenged the UK’s approach, including prescribed, with the court stating it was to be a A complaint was made by the Council Hampshire v Board of the Pension Protection matter for the PPF; of the Law Society of Scotland against John Fund (C-17/17) [2019] ICR 327, decided by • the time limit for compensation Christopher Bartlett, solicitor, Dingwall. The the CJEU in 2018 – which required a 50% of underpayment claims to the PPF is six years; Tribunal found the respondent guilty of scheme benefits underpin. Following Hampshire, • during a PPF assessment period following professional misconduct in respect of his the PPF has applied a one-off compliance check employer insolvency, trustees of schemes breaches of (a) rule B6.4.1, (b) rule B6.7.1, (c) at the PPF assessment date, on an interim basis. must calculate the limit on benefits payable rules B6.7.3 and B6.7.4, (d) rule B6.23, (e) rule Both the compensation cap and the method by reference to the PPF level of compensation, B6.13.2 and (f) rules B6.15 and B1.2, all of the of implementing the Hampshire underpin including the uplifts required by article 8, so Law Society of Scotland Practice Rules 2011, were challenged by 25 claimants in Hughes checks and action will be required. said findings of professional misconduct (a)-(f) v Board of the Pension Protection Fund [2020] If not successfully appealed, a review of being in cumulo and finding of professional EWHC 1598 (Admin), decided on 22 June in the PPF compensation should be expected, with misconduct (f) being found individually. The Administrative Court. Many of the claimants adjustments to remove the cap and deliver Tribunal censured the respondent and restricted had reductions applied to PPF compensation compensation to meet 50% of scheme benefits his practising certificate for an aggregate period because they were below normal pension age in for both members and survivors, based on the of two years. their original schemes at the relevant insolvency rules of the original scheme. The respondent accepted that he had failed to dates: for Hughes the reduction was 75%. They rectify breaches of the accounts rules and that contended that the cap was disproportionate Avacade: unlawful activities some of these had been drawn to his attention and age discriminatory, and that the method the and restitution orders for FCA following a 2011 inspection. He had failed to PPF used to implement the Hampshire judgment comply with proper anti-money laundering was not precise enough. On 30 June, the High Court held that the practices. His accounting records were not up The court held that: activities of two pension advisory companies, to date and were not up to standard. He had not • the application of the compensation cap Avacade Ltd and Alexandra Associates (UK) chosen to use appropriate accounting methods constitutes unlawful age discrimination, so is Ltd (“AA”), were unlawful, because they had or software. He had not maintained proper contrary to article 8; carried out FCA-regulated activities without anti-money laundering procedures, policies FCA authorisation: Financial Conduct Authority and provided appropriate staff training. He had v Avacade Ltd (in liquidation) (t/a Avacade not acted properly as cashroom manager. He Investment Options) [2020] EWHC 1673 (Ch). had submitted false and inaccurate accounts The FCA alleged both companies provided certificates to the Society. a pension report service, and made misleading The Tribunal was satisfied that the statements inducing pension savers to transfer respondent’s many failures over a period of their pensions into self-invested personal five years were a serious and reprehensible pensions (“SIPPs”) and then into “alternative” departure from the standards of competent investments such as HotPods (office space and reputable solicitors, particularly when he available for rent), tree plantations and Brazilian had failed to address the matters drawn to his property development. More than 2,000 attention in 2011. Accordingly, he was guilty pension savers transferred more than of professional misconduct. The Tribunal was £90 million into these SIPPs. Many underlying satisfied that the conduct in cumulo amounted investments failed or were in liquidation. to professional misconduct. However, the The court also found that the companies submission of nine false and inaccurate had made unapproved financial promotions via accounts certificates was capable of amounting their websites, issued promotional material and to professional misconduct on its own. Accounts made telephone calls to pension savers and certificates are one of the means by which the had made false or misleading statements. The Society monitors compliance with the rules and FCA was found to have jurisdiction to apply for risk to client money. The Society is entitled to restitution orders, as the “knowingly concerned” rely on accounts certificates as showing the test was met since the three individuals who matters which have been identified and the were directors and managers in Avacade had measures taken to deal with them. Failure to knowledge of the business models and active record the breaches on the accounts certificates involvement, as had two of those individuals as called the respondent’s integrity into question. senior managers in AA. The FCA has asked the He knew about the issues raised in the 2011 court for orders banning the companies from inspection and other problems. His completion engaging in unauthorised activities in the UK, of the certificates without comment, knowing and for financial restitution: a further hearing he had not resolved all issues, despite his will take place. efforts, demonstrated a lack of integrity.

August 2020 \ 35 Briefings

Duncan McKinnon Burd the respondent’s lack of communication and would be circumstances where the conduct was A complaint was made by the Council of the Law co-operation was not acceptable. such that disciplinary action would be required. Society of Scotland against Duncan McKinnon However, the latitude had to be protected, and Burd, Anderson MacArthur Ltd, Somerled the Tribunal was concerned that a finding of Square, Portree, Isle of Skye. The Tribunal professional misconduct in the circumstances found the respondent guilty of professional Gordon Dangerfield of this case might limit the freedom of court misconduct in respect that he (1) submitted A complaint was made by the Council of practitioners. accounts to the which the Law Society of Scotland against Gordon The Tribunal found it disappointing to have to included outlays which were unrestricted Dangerfield, Archer Coyle Solicitors, Glasgow. deal with a case of this nature. The matter ought for alcoholic beverages and food for others, The Tribunal found the respondent not guilty of to have been resolved long before contempt in breach of rule B1.2 of the Law Society of professional misconduct. The Tribunal did not of court or defamation were mentioned and Scotland Practice Rules, article 3 of the Criminal consider that the conduct established might certainly well in advance of a complaint to the Code of Conduct, reg 8(1)(c) of the Criminal meet the test for unsatisfactory professional Scottish Legal Complaints Commission. This Fees Regulations 1989 and SLAB’s Code of conduct and therefore declined to remit the was a standoff between two lawyers about Practice for Legal Assistance (April 1998); and complaint to the Society in terms of s 53ZA of a trivial incident which ought to have been (2) failed to communicate effectively with SLAB the Solicitors (Scotland) Act 1980. swiftly sorted out between the parties in breach of rule B1.9.1 of the Law Society of The first averment of misconduct themselves, without recourse to the Tribunal. Scotland Practice Rules and failed to cooperate related to correspondence sent by the with SLAB in breach of s 3.7.1 of SLAB’s Code of respondent. According to the complainers, the Practice for Legal Assistance (April 1998). The correspondence contained grave allegations Tribunal censured the respondent and fined against another solicitor which amounted John James Rankin Hodge him £5,000. to an insulting, intemperate and disparaging A complaint was made by the Council of the The respondent fell short of the standards of attack on another solicitor as they were untrue. Law Society of Scotland against John James competent and reputable solicitors to a serious However, the Tribunal did not consider that the Rankin Hodge, Wallace Hodge & Co Ltd, Ayr. and reprehensible extent when he included content of the correspondence was sufficient The Tribunal found the respondent guilty of alcoholic beverages in his account and when to meet the test for professional misconduct professional misconduct in respect that (a) he his claim against the legal aid fund included or that the language used was intemperate, failed to write to the secondary complainer to the costs of food purchased for other people. insulting and disparaging. The respondent’s advise her that legal consequences might arise SLAB had pointed out to the respondent in assertions were factually correct. Taking into from her signing a discharge of a standard August 2012 and he subsequently agreed in account the averments of duty, the Tribunal did security granted by her late father in favour of correspondence that charging for alcohol was not consider that the respondent’s conduct in her and her siblings, and that she should seek not appropriate. The respondent, nevertheless, this correspondence represented a serious and independent legal advice prior to signing the continued to include charges for alcohol in the reprehensible departure from the standards of document; (b) he failed to act with integrity in accounts that he submitted to SLAB. Counsel for competent and reputable solicitors. that he advised the secondary complainer that the respondent accepted that the respondent The second averment of misconduct related the other executors and residuary beneficiaries would occasionally buy food for others. These to the respondent’s conduct in court on had agreed to pay her a one-eighth share of expenses were not properly recoverable. The two occasions. It was alleged that he made the proceeds of sale of the house in question, respondent had been reckless in submitting unfounded allegations which were unjustified but then made payment of the said sums claims for alcohol and food for others and in fact and law against another solicitor’s conditional on the secondary complainer taking expecting SLAB to find them and abate them character in writing, and in court when he no further action in respect of the circumstances without making the true situation plain to asserted that she was in contempt of court. surrounding her discharge of the standard them. The respondent had failed, on occasion, However, the Tribunal did not consider that the security; (c) he failed to act with integrity in to provide SLAB with sufficient information to respondent’s conduct represented a serious and respect that he made payment of the sums due allow them to make a proper determination. On reprehensible departure from the standards of to the secondary complainer conditional upon repeated occasions, the respondent certified to competent and reputable solicitors. her withdrawing the complaint which she had the best of his knowledge and belief that the There will be occasions where agents must made to the SLCC regarding the respondent, items charged in the account were accurate and be free to make submissions on unpalatable thus delaying or hindering the advancement represented a true and complete record of all matters such as contempt of court against other of the executry; and (d) he placed himself in a the work done. The respondent lacked integrity practitioners. If an agent is incorrect in his/her conflict of interest situation. when making this declaration as he knew that assessment of the situation, they ought not The Tribunal censured the respondent, he had submitted expenses for alcohol which he to be subject to disciplinary proceedings. This fined him £6,000 and ordained him to pay had already accepted could not be charged, and might have a chilling effect on the ability of compensation of £2,500 to the secondary for food for other people. court practitioners to do their best for clients complainer. The respondent failed to communicate and seek justice for them. In the present case, The respondent breached the practice effectively with SLAB and failed to co-operate the respondent was most likely wrong in law rules. He fell short of the ethical standards with them. The respondent corresponded with regarding contempt. However, this did not make of his profession. He prioritised his interests SLAB in terms that were not transparent or the matter of disciplinary concern. The Tribunal over those of the clients, creating a conflict straightforward. His choice of language was accepted that there were limits to freedom of interest. He could not provide independent intemperate. He was evasive in answering of speech which had to be balanced against and impartial advice when his own personal legitimate queries posed to him by SLAB staff. the requirement for court practitioners to act interests were involved. This was a deliberate Despite the background of the deteriorating appropriately and in a manner of mutual trust and repeated strategy which demonstrated relationship between the respondent and SLAB, and confidence with other solicitors. There a lack of integrity.

36 / August 2020 Code to recovery The Scottish and UK Governments have worked together on a code of practice designed to help commercial landlords and tenants to pull through the COVID-19 disruption together

UK and is intended to promote good practice own circumstances. If a landlord refuses a Property between landlords and tenants as they deal with concession, they should be equally open and BEN MACPHERSON, the financial shocks and uncertainty caused by transparent and make it clear to the tenant why MINISTER FOR PUBLIC the pandemic. this decision was made. FINANCE AND MIGRATION As a voluntary code, it does not change the legal relationship or lease contract already Towards recovery in place between landlord and tenant, and The aim of the code is to facilitate these types Collaboration, open dialogue and mutual support any guarantor. However, both the Scottish of discussions in order to allow the creation are key to overcoming the unprecedented Government and the UK Government strongly of a shared recovery plan for temporary and challenges facing the commercial property encourage landlords and tenants to utilise the sustainable solutions outside the arrangements sector in Scotland as a consequence of the code and urge lenders to continue providing of the current lease. However, the code does not COVID-19 pandemic. support as proactively as possible to enable change the legal responsibilities of either party, With tenants, commercial landlords, investors tenancies to endure, to sustain jobs and to and tenants are still legally liable for payment and lenders experiencing significant financial maintain productive capacity. Contributing to a obligations – tenants who can still pay in full or pressures, there is a vital and shared need for successful restart of our economy is something in part should continue to do so. all parties to generate joint solutions that are we all have a shared interest in. Through the pandemic, buildings need to flexible in the short term and sustainable in the continue to be insured and maintained. Landlords long term, as we continue to suppress the virus Be transparent need to think about the impact service charges and restart the economy. The key principles of the code are transparency and insurance costs have on a tenant’s finances. The Scottish Government is supporting and collaborative communication to create a If the property has been used less, service charge businesses through the pandemic using a range unified approach. Our common goal is business costs should be lowered accordingly to provide of regulatory, fiscal and monetary measures, as continuity that extends beyond the pandemic, the best value for tenants. However, as these are well as offering advice and regular updates. providing more stability and assurance for both non-profit making charges, proportionate everyone. But we recognise that even if essential costs should continue to be paid by the Collective work landlords and tenants utilise the code in their tenant wherever possible. Specifically in relation to commercial discussions, the desired outcome may not be Taken together with the anti-irritancy property, early action was taken, as part of the achieved. In these cases, a third party mediator measures, the code will help to provide the Coronavirus (Scotland) Act 2020, to support may be beneficial in facilitating discussions to breathing space for tenants, landlords and businesses to remain in their properties even help achieve a negotiated arrangement. lenders to work together on a plan for a if rent could not be paid. Following the latest If you are a commercial tenant seeking rent sustainable future. Its principles are supported three-monthly review of the Act on 24 June, concessions from your landlord, for example, by many representative bodies, from both it was decided to keep those anti-irritancy openly and transparently sharing appropriate the landlords’ and tenants’ perspectives, measures in place. financial information will allow landlords to including the British Property Federation, Royal Under these measures, commercial leases understand what concessions will support you Institution of Chartered Surveyors, British Retail cannot currently be terminated for non-payment back towards generating income and paying the Consortium and Federation of Small Businesses. of rent for a period of 14 weeks, rather than the rent in the future. The transition back to normality will take previous 14 day period. I encourage parties to Landlords should provide concessions where time and the Scottish Government will continue use this time to reach mutually agreed solutions they reasonably can whilst considering their to monitor the economy to determine whether that enable businesses to return to trading and further intervention is necessary. generate income. It is in no one’s interests for The code of practice represents a good viable businesses to be closed and properties to “Contributing to a starting point on our road to economic recovery become vacant. successful restart of and I strongly encourage all relevant parties to To aid with this collective response, my use it. team and I worked with the UK Government to our economy is introduce the code of practice for commercial something we all have The code of practice can be found at www.gov.uk/ property relationships during the COVID-19 government/publications/code-of-practice-for- pandemic. The code covers the whole of the a shared interest in” the-commercial-property-sector

August 2020 \ 37 Briefings “So, how are you?” Some reflections on the COVID-19 pandemic from the in-house perspective, in the wake of the Society’s survey of in-house lawyers’ experiences during lockdown

While the in-house community to an extent While the ability to conclude most contracts In-house was already up on this curve – with online electronically already existed within the law, meetings being a part of the everyday for many – it has now entered the mainstream, coupled CATHERINE CORR, PRINCIPAL SOLICITOR, such interactions are obviously now the default, with an increased flexibility in mindset around LEGAL SERVICES, and more time and effort it seems are being the different media that can be used in this SCOTTISH ENTERPRISE invested into making them work effectively. respect and around the use of witnesses. Use of Indeed, the consensus appears to be that encrypted e-signatures also seems set to rise. The Law Society of Scotland, in collaboration more is being achieved through the online Law Society of Scotland smartcards, previously with the In-house Lawyers’ Committee, recently approach and less time and resource wasted. considered as not particularly relevant for most took the temperature of the in-house community Availability and use of increasingly sophisticated and often left to expire, may see a resurgence in it serves, launching its online survey on 5 June. online meeting packages are also assisting in value across the profession. The survey attracted over 400 responses, overcoming concerns that might otherwise arise An increased use of the various sophisticated indicating that in these uncertain times, people about the lack of ability to read facial signals or signing platforms that exist, such as DocuSign or seem increasingly keen to connect. body language. Adobe, is also noticeable, as is awareness of the In what can feel like a relentless barrage various issues that potentially arise in relation to of unsettling news, it might be easy to feel such platforms, for example in respect of version overwhelmed and worried about the future. “The practical approval and control. Encouragingly, however, the responses The opportunities afforded by automated appear to indicate that the in-house community consequences of online documentation solutions and portals is adapting, proactively engaging with evolving lockdown have to save time, facilitate business continuity and work practices and, to an extent at least, hopefully enhance ultimate end user experience, flourishing, as we move past the first acute accelerated changes and are also increasingly being recognised, explored phase of the crisis and look towards the future. encouraged innovations and deployed. A full report on the survey has been published Even and the by the Society: see www.lawscot.org.uk/ in areas that have, prior courts are engaging, now accepting and research-and-policy/research/research/. This to now, seemed to be indeed encouraging online submission of article predominantly focuses on key themes documentation and forms. drawn from the responses to the survey question: immovable features” While some might say the law in this respect “Please share any positive changes that you or is simply catching up with other disciplines, the your in-house legal team have seen in relation reality is that this is still relatively new ground to your role or working practices as a result Virtual pub quizzes and team catchups via for most, and market practice is developing in of the COVID-19 crisis”, together with my own programmes such as WhatsApp, Twitter or real time. experiences, personal reflections and impressions Teams, or use of Yammer, are also tools that More widespread recognition and acceptance on how the in-house community has adapted. are being deployed with greater frequency and of the advantages of technology and the commitment across organisations, to ensure flexibilities it can offer in legal practice, is Catching up: technology and flexibility that the more social aspect of work is being however in turn, at least from my own A key theme emerging is the increased maintained – enabling many, ironically, to feel perspective, enabling us to shift the often held engagement with modern technology as well more connected to others across the business, perception within our wider organisations that as the accelerated acceptance of its place at the not less. the law can be overly formal and cumbersome. heart of the effective delivery of legal services in Necessity, it seems, is indeed proving to be the 21st century. Forced to rethink the mother of (re)invention. The fact that most of us have been working Perhaps more notable, however, has been the from home for the past few months has shifting in the wider legal landscape that in turn Big girls (and boys) do cry underlined the importance of having an up-to- has had an impact on our day-to-day work. (at least sometimes) date and secure IT infrastructure that can sustain The practical consequences of lockdown have There also appears to be something of a more and support remote working on this scale. The accelerated changes and encouraged innovations subtle mindset shift across practitioners and value of investing in quality IT support teams in areas that have, prior to now, seemed to be many employers. and in programs such as Zoom or Microsoft immovable features of the marketplace, whether The realities of working from home have fused Teams to keep connected is also increasingly in fact always required or not. our private and professional lives in a way that is recognised as fundamental – no longer a nice to Electronic signatures on most documentation unprecedented. have but an intrinsic part of the job. has, for example, become more the norm. On the one hand, it has afforded, to many of

38 / August 2020 in-house lawyers almost hourly in what is often uncharted territory. The practical challenges presented by COVID-19 have, for example, given rise to an enhanced role for compliance and governance advice across a myriad different business areas, from established ones such as HR/wellbeing, data protection and property to new ones created by the crisis, all of which are having to be considered in real time. There has also been an increased recognition of the importance of legal advice in relation to new service design within the business. The need for businesses to adapt and interact with third parties speedily and in new ways to survive in the “new normal” has required, and is requiring, creative and agile advice to be given by legal teams, often within very tight timescales. For the first time, it seems, many are recognising the legal team as not just part of the support side of the business but as an intrinsic part of its strategic team. It remains to be seen whether this approach continues as we emerge slowly from lockdown, us for the first time, a taste at least of that often are you?” followed by some exchange of personal but it is to be hoped that in-house legal teams elusive concept of work-life balance – whether anecdote on experience of lockdown so far. can grasp this opportunity to take their seat that is being able to do a spot of exercise in In short, there seems to be a deeper at the table in relation to the overall strategic place of the daily commute, the basic satisfaction awareness and acceptance of the human side direction of the business in the longer term. of putting on the washing machine before work, of our fellow professionals and colleagues, or the chance to avoid the indigestion-inducing and flowing from that, a more tolerant and Parting thoughts dash to do the nursery drop-off in the morning. collaborative approach to interacting with each In assessing, therefore, the winners and losers Abiding by lockdown rules has also, however, other. There also seems to be, at least at present, of La Vida Lockdown so far, it seems that the in- inevitably meant that the messiness of real life a greater acceptance of flexibility in working house community is holding its own. has intruded into the day-to-day. It’s difficult practices by employers. It is to be hoped that the opportunities and to be overly adversarial or detached in a It is to be hoped that such behaviour shifts the valuable insights which have been, and are negotiation, for example, when you are sitting endure far longer than the current crisis, given it every day being gained during this time, are built on a patio chair in your bedroom, you have a is recognised that a collegiate and collaborative upon to enable us not just to emerge from the child hanging around your neck or you have a approach in general leads to faster and better current climate but to flourish. dog that suddenly decides the postman is his results and more motivated employees. The signs at least are positive. Law and in- nemesis while you are on a call. house legal practice are evolving… and in so doing The public sector has always led the way in A seat at the table are showing they are nothing if not resilient. terms of advocating resonant communication, but Finally, the crisis has also, it seems, seen an even there I have noticed a shift in emphasis in increased rather than reduced demand for Catherine Corr is a member of the In-house recent times, with most calls starting with “So how legal advice, raising new considerations for Lawyers’ Committee

FROM THE ARCHIVES 50 years ago 25 years ago From “Professional Practice – Press Announcements”, August 1970: “In From “Aspect”, August 1995: “We predicted… some years ago that those the past the Council of the Society have always taken the view that of our members who undertook… domestic conveyancing at bucket- announcements and notices relating to solicitors should be published shop prices might well find themselves in a position of practising at only in the legal press. In view of the trend towards amalgamation of a loss or even having to give up because they could no longer afford practices the Council feel their ruling in as far as it relates to notices to sustain their firm. Sadly, that prediction is now becoming a reality… of amalgamations should be relaxed and they have accordingly There is real rage within the Profession at what is happening and at resolved that there will be no objection to solicitors making one the apparent inability to redress the problem. It appears that in the announcement of an amalgamation of practices in the public press. West of Scotland at least the fee levels have been set… by estate The position relating to other notices remains as before.” agents and others using the advertisement of cheap legal fees”.

August 2020 \ 39 In practice Survey highlights virtual custody court problems

report by the effective representation. The Law Society Society has called for further of Scotland monitoring and evaluation of on the pilot the pilot, and for clarity from A virtual custody the Scottish Government, Police court hearings Scotland, the courts and Crown has highlighted significant Office on any expansion of, or issues faced by solicitors and longer-term plans for, virtual their clients. custody courts. Rising Star Five virtual custody courts President Amanda Millar Award opens have been piloted in Aberdeen, commented: “There is a role Edinburgh, Falkirk, Glasgow and for technology in the justice to entries Saltcoats, but a survey covering system and there may be some 144 prosecutors and defence papers or arranging the client potential advantages to virtual Nominations are now open for solicitors has revealed issues consultation. More than half of custody courts beyond the the 2020 Law Society of Scotland with obtaining instructions respondents (58%) preferred immediate need for COVID-19 In-house Rising Star award. and apparent inconsistencies videoconferencing to using safety measures. However, the The award recognises the in the way the pilot courts the telephone. survey findings have highlighted outstanding achievement of are operating. Many identified issues with a range of practical problems a newly qualified Scottish Among the findings, 81% technology not working well, arising from the pilot, as well as solicitor with up to five years' were either dissatisfied or very including audibility and visual issues resulting from the different post-qualification experience, dissatisfied with the client problems, not being able to approaches adopted by the pilot or trainee working in-house. consultation process, with consult privately with clients, courts. These will have to be Entries will be judged by In-house only 10% indicating that they or being unable to identify if a addressed before there can be Lawyers' Committee members and were either very satisfied or client was vulnerable or needed any plans for a further rollout.” individuals working closely with satisfied. Most defence agents additional support, which had an the in-house community. (78%) experienced problems impact on them obtaining clear The report can be accessed at Nomination forms can be in obtaining sight of the instructions and undertaking bit.ly/3hNAMRB accessed at www.lawscot.org.uk/ members/professional-support/ in-house/in-house-rising- star-award/. The deadline for Council seats open Another levy? nominations falls at 5pm on 28 August 2020. to nominations Ministers consult The winner will be announced on 6 October at the In-house There are three co-opted seats on the Society's In its 2020 Budget, the UK Government announced Annual Conference, which is to be Council for which elections are due to be held its intention to introduce an economic crime a virtual event this year. in September. They cover: levy, aimed at raising approximately £100 million Catherine Corr, a member of (a) newly qualified solicitors who have held a per year from entities regulated for anti-money the committee and one of this practising certificate for less than five years; laundering (AML) purposes. These funds would year’s judging panel, said: “As we (b) solicitor advocates; be used to resource a sustainable programme to work through the unprecedented (c) members outside England, Scotland tackle economic crime. circumstances presented by the and Wales. The UK Government is currently running a COVID-19 pandemic, it remains The electorate for each is limited to consultation on the levy (gov.uk/government/ important that we recognise the qualifying condition for the specific consultations/economic-crime-levy-consultation), talented and committed individuals constituency. Any member who wishes to seeking views on what the levy will pay for, and I encourage all my in-house stand for any of these co-opted seats (and how it should be calculated and distributed colleagues to nominate their legal meets the qualifying condition) may obtain a across the AML regulated sector and how it stars of the year. nomination form from David Cullen, registrar, should be collected. “Last year, we had 13 at [email protected]. Forms should It lays out a number of options as to how the nominations, the most since we be completed and returned by Thursday 10 levy might be applied, with minimum revenue being launched the award eight years September 2020. the suggested qualifying criterion. Depending on ago. The standard of nominations There is also to be a new co-opted seat for the figure applied, particular strata of Scottish is incredibly high each year and solicitors working in the third sector. Nomination legal firms may be exempt. The Society will be I have no doubt that this year’s forms for this seat can also be obtained from submitting a response. Members with an interest in candidates for the award will be David Cullen. The deadline for completed forms the proposals can submit their own responses by just as exceptional.” is again Thursday 10 September. the 13 October deadline.

40 / August 2020 PUBLIC POLICY HIGHLIGHTS Will Relief The Society’s policy committees analyse and any category of persons. This includes, but is not Scotland respond to proposed changes in the law. Key limited to, people who have disabilities of any kind. areas are highlighted below. For more information see www.lawscot.org.uk/research-and-policy/ COVID-19 Will Relief Last month, the Society submitted responses on Scotland Hate crime three different areas related to how COVID-19 is There has been a lot of media interest in the affecting work in the health and social care sector. appeals Society’s submission to the Scottish Parliament • Clinical Guidance for NHS Scotland: Using Justice Committee’s call for views on the Hate physical restraint for patients with confirmed or for firms Crime and Public Order (Scotland) Bill. The suspected COVID-19. This guidance is intended Will Relief Scotland is appealing submission highlighted major flaws which could to operate alongside existing local and national for solicitors’ firms to join its prevent the bill from achieving its stated goals. guidance on supporting mental health and learning 2020 campaign, which runs In particular, it criticised the “vagueness” in disabilities patients. The Society highlighted in September. the bill and its policy intentions, highlighting the concerns that the guidance drafted does not Since it started in 2006, more risk that this could result in a lack of certainty sufficiently emphasise the existing legal and ethical than £200,000 has been raised in understanding what constitutes criminal considerations applying to the use of physical through the generosity of Scottish behaviour. This would have consequences for restraint for these patients. As the current situation solicitors. This supports four solicitors, whether prosecuting or defending on means that they may be receiving treatment for Scottish-based charities working the offences created. COVID-19 in an acute hospital setting where staff across the world to bring relief and The Society is further concerned that the are not as familiar with the relevant legal and life transformation to thousands of bill presents a significant threat to freedom of ethical considerations, it is even more important people in need: Blythswood Care, expression, with the potential for criminalising that these are emphasised within the guidance. EMMS International, MAF Scotland what may be abusive or insulting. These terms are • National Clinical and Practice Guidance and Signpost International. highly subjective, requiring judicial clarification on for Adult Care Homes in Scotland during the Will you consider joining the a case-by-case basis. Further, the provisions for COVID-19 pandemic. Recent written evidence September 2020 campaign this a new offence of “stirring up hatred” set too low to the Scottish Parliament’s Equalities & Human year and, along with other member a standard. They would mean that an offence can Rights Committee’s inquiry on the impact of solicitors, make a difference? be committed if hatred is “likely” to be stirred up. COVID-19 is relevant for this guidance, too. In That is not the threshold required for criminal law, particular, given the case histories gathered as For more details contact Mairi which depends on guilty intention. part of that evidence, the Society recommended Ferrier on 01349 830777 or While it is right to have laws which reflect that as a matter of urgency clear advice should [email protected] the increasing diversity of Scotland’s population be given that there should never be any blanket and which send a clear message that hatred prohibition on transferring a resident from a should have no place in our society, the Society care home to a hospital for any reason. It also has significant reservations regarding the bill as highlighted the importance of ensuring that any Rule change: currently drafted. appointees with relevant powers are included incorporated in decision-making on important issues such Future of transport as whether a Do Not Attempt Cardiopulmonary practices The Society submitted a response to the Resuscitation (DNACPR) should be in place. Department of Transport’s call for evidence on • Reporting on Coronavirus Acts: Adults with Rule D5 of the Practice Rules sets the Future of Transport Regulatory Review, Incapacity provisions. The Society previously out the requirements which must which focused on highlighting areas where commented on modifications to adults with be met before a body corporate the rights of those with disabilities may not be incapacity legislation in the context of the can be recognised by the Society adequately protected. pandemic, so took the opportunity to reiterate as an “incorporated practice” in One of the Government’s principles in some of these comments. It also called for the terms of s 34(1A) of the Solicitors facilitating innovation in urban mobility for freight, end of blanket “stop the clock” provisions which (Scotland) Act 1980. The rules have passengers and services was to ensure that remain in place in respect of guardianship orders now been amended in line with the benefits of innovation in mobility “must be and certificates authorising medical treatment proposed amendments sent to available to all parts of the UK and all segments while the emergency legislation is in force. members before the AGM in May. of society”. With this in mind, the response The main purpose of the highlighted that no mode of transport or transport The Policy team can be contacted on any of the amendments is to equalise service should be permitted if it reduces access matters above at [email protected] the treatment of incorporated to any facility or service providing mobility for Twitter: @Lawscot practices, regardless of whether structured as a company or a limited liability partnership, given that, in reality, both types of structure may have only a OBITUARIES limited number of individuals qualified to own, manage and IRIS CHRISTINE MARY McMILLAN (retired solicitor), Edinburgh WILLIAM JAMES SCOTT control the business and hence On 26 February 2020, Iris Christine Mary McMillan, formerly CROSBY (retired solicitor), both types may need to consider employed with City of Edinburgh Council, Edinburgh, and Brussels how to manage the same risks. longstanding member of the Law Society of Scotland’s On 25 April 2020, William James New guidance accompanies the Health & Medical Law Committee. Scott Crosby, avocat, Brussels amended rules and can be found AGE: 66 ADMITTED: 1983 AGE: 69 ADMITTED: 1979 on the Society’s website.

August 2020 \ 41 WORD OF GOLD Fine margins are not so fine Pricing post-COVID requires us to raise our game and our sights, says Stephen Gold

he oldest cliché about lawyers a house, finalising an undefended divorce, is that they are too expensive. “It’s a dangerous time for defending a road traffic charge, enforcing rights, “Like the doors of the Ritz lawyers who lack the forming a company, or winding up an estate is T hotel, justice in England is confidence to negotiate, for the client always a big deal. How well it is open to all,” quipped Victorian done may have life-changing consequences. The judge Sir James Matthew. He’d have themselves been premium price women are willing to pay for Olay have said the same about Scotland. But while he reflects the value they place on its effect, not the had a point to make about High Court litigation, severely affected, and cost of its constituents. In professional services, many SME firms, a sector which comprises the who confuse the need pricing work on the basis of value, articulating majority of the UK profession, consistently fail to confidently how the figure has been calculated recognise their own value, use a finger in the to be busy with the need and why it is fair, is the surest route to profit and wind as a measure, and short-change themselves to be profitable” enduring client loyalty. It definitely beats dividing in the process. time into six-minute units, then applying an In the most striking example I know, a firm opaque and arbitrary multiplier. engaged consultants to help them improve their outlets, and then pitched at various price points: Secondly, only a premium service will attract pricing, and agreed that if a minimum increase $12.99, $15.99 and $18.99. The last was most a premium price. The new Olay was not old in turnover was achieved, the consultants would successful – expensive enough to be regarded as wine in new bottles; it was significantly better. receive a bonus of £20,000. The firm turned out premium, but good value against competitors. It For law firms, being premium means more to be just as hapless after the training as before, has become a market leader at almost five times than being technically proficient. That’s just a and turnover didn’t increase. But they paid the the original price. ticket to the game. It means being responsive, bonus anyway to avoid the embarrassment of accessible, empathetic, friendly and with great having to admit it. What are the lessons of Olay? communications. Being impressive online and Clients ravaged financially by the pandemic Firstly, whether cosmetics or counsel, clients immaculate front of house are not optional. This are more aggressive than ever on price. It’s a will pay good money if a product or service is is a tall order, but at the same time, every firm dangerous time for lawyers who lack the skill important to them, providers demonstrate a can achieve it. Whether they do, depends far and confidence to negotiate on their own behalf, commitment to quality, and skilfully articulate more on commitment than budget. have themselves been severely affected, and their value. I know of no client who has ever been Finally, P&G demonstrates that whether who confuse the need to be busy with the need to a lawyer on a matter they did not think was our business is multinational or local, success to be profitable. important. A specialist professional’s life consists depends on making thoughtful choices about of doing broadly similar things again and again. which markets we want to be in, investing in Addressing an image problem But that in no way diminishes the importance of acquiring a deep understanding of what clients It’s easy to identify the problem, but what is the the task. need, not thinking we know instinctively, solution? Surprisingly, there are lessons in a It is easy to forget that what may seem and then doing what it takes to deliver. The jar of face cream. Oil of Olay was created by a routine, for example making a will, conveying importance of what lawyers do, and the skill, chemist working for the South African operations effort and resources required to do it well, of Procter & Gamble in 1952. Its biggest market is mean that if we do indeed deliver, we should the US. Over the years, discounting had given be bold and confident about earning a decent it a downmarket image, and by 1990, margin. We’ll never reach the stars by mocked as “Oil of Old Lady”, it was sold pricing in the basement. mostly in convenience stores at $3.99. The choice was to ditch it, or perform urgent, as it were, cosmetic surgery. P&G Stephen Gold was the founder and senior decided to relaunch, focusing on women partner of Golds, a multi-award-winning from their mid-30s, an age at which law firm which grew from a sole practice to they were becoming more conscious become a UK leader in its sectors. He is now of the need for skin care, and willing to a consultant, non-exec and trusted adviser to invest in it. The cream’s composition was leading firms nationwide and internationally. substantially improved. It was rebranded e: [email protected]; “OLAY”, repackaged to look good on the t: 0044 7968 484232; w: www.stephengold. shelves of upmarket stores as well as mass co.uk; twitter: @thewordofgold

42 / August 2020 TRAINING Training beyond the law Offering a perspective from south of the border, Mark Lello believes that a standard legal training fails to equip lawyers as business people, a deficit addressed by his firm’s training academy

eing a great The training modules have lawyer doesn’t been designed in part around mean you are a the unknowns that senior great business practitioners wished they had been B person. told about when they were junior Along with lawyers. Good examples are the other professional disciplines, importance of marketing as an lawyers excel in producing experts integral part of one’s practice, and within their own specialisms. But of making sure your colleagues what the pandemic has proved know you: the all-important and is that being a great litigator, overlooked “internal market”, not conveyancing or private client just that of the external customer. lawyer does not necessarily equip them well for the challenges of Fit for a new environment running a business at times of We’re not the first. Neither should great uncertainty. law firms be the last. A law degree is the strongest When redesigning our training platform for a continued career programme we looked at other in almost every domain. So it is videoconferencing, which many siloed. The overarching needs of both organisations with similar business all the more ironic that so many considered to be a suboptimal way private and corporate clients are issues and customer dynamics lawyers, and indeed firms, lack the of servicing clients, but which have often ignored, with the result that the to ours. The way Goldman Sachs basic business skills with which been well received by practitioners solicitor lacks the depth of experience train is an interesting parallel, and to appreciate and react to the and clients alike. to discuss the wider issues. A prime especially their approach to small challenges facing their clients Necessity has also seen huge example of this is the universal need businesses. How they develop their due to COVID-19. progress in the move towards for a power of attorney, which is employees for future leadership There are many contributing electronic signatures for wills just as important as a shareholder roles, and how colleagues and factors to this limitation, but a and other documents, benefitting agreement for owners of businesses, clients behave in the workplace, fundamental issue is the failure by clients with mobility issues and also and arguably should be put in place were apposite learnings. most law firms to invest in non-legal allowing us to serve a far larger at the same time. Training must also be flexible, training, development and mentoring. geographic area. to adapt and evolve alongside Real world training the needs of the business and Business insights, Let’s build a better lawyer should be mandatory clients. A good example in our not just legal prowess Crises of one sort or another are Our “Parker Bullen Training case has been the inclusion of The last four months have probably cyclical. Thirteen years ago it was Academy” strategy was devised a module on franchising, as we changed the way we live and work a global financial meltdown, and to complement the structured have a strong presence in the forever. So how have we reacted? 19 years ago it was 9/11. Such legal training and “on the job” military, and many ex-forces Our profession has always been crises are infrequent, but the result experience with real world content, personnel choose franchising accused of being too introspective, is often that there will be a large to which trainees will not have as post-service employment. of failing to understand how number of partners across the been exposed, but In conclusion, our clients are evolving their UK who have never experienced which is nonetheless COVID-19 has behaviour when dealing with other business turmoil, and therefore crucial in adding value galvanised us. More professional service providers and have limited experience and when advising clients than ever, we are the broader environment. knowledge to call upon. and colleagues on a striving to build a better Let’s face it. Our clients will But it’s not just crises that day-to-day basis, and and stronger business. happily spend the same amount many lawyer trainee programmes especially when a Integral to this is a of money on a flat screen TV fail to address. Practical issues crisis occurs. focus on training as they would a fairly complex such as cash flow, winning new It should be noted programmes that will – especially as they can business, client handling and how that other law firms Mark Lello is a make us fit for purpose click and collect the TV. That to run a meeting are often learned have participated, and partner and head in a new business said, credit where it’s due – a by osmosis rather than in a the training is also open of the Commercial environment and better department with profession not known for its structured manner. to accountancy firms, Parker Bullen LLP, able to tackle whatever rapid adoption of innovation has Another problem that often needs many of whom share Salisbury and external events throw turned to technologies such as addressing is the fact that law is very the same issues as us. Andover at us.

August 2020 \ 43 In practice

TAX REPORTING Get ready for DAC6 Solicitors involved with clients’ cross-border tax arrangements need to know about the new mandatory reporting regime, even if legal privilege will often exempt them from having to report

is a mandatory reporting regime for intermediaries DAC6 (including lawyers, accountants and others) involved in cross-border arrangements that bear hallmarks associated with tax avoidance and aggressive tax planning. The legislation is in the International Tax Enforcement (Disclosable Arrangements) Regulations 2020, implementing EU Council Directive 2018/822. In the UK reports are made to HMRC. HMRC published guidance on the regulations on 1 July 2020 (HMRC IEIM 610000 onwards). There is an important exception for lawyers, where to report would breach client confidentiality (referred to as “legal privilege” Transactions the rules apply to “promoters”). They also apply to transaction is reportable. On the here). This means that in most cases The regulations apply to “reportable intermediaries who provide aid, other hand, intermediaries cannot legal privilege will prevent lawyers cross-border arrangements”. assistance or advice if they knew, be wilfully blind or artificially split from making a report. However, Cross-border arrangements are or could reasonably be expected up information. must notify other arrangements that concern an EU to know, that a reportable cross- intermediaries (if any) involved in member state and another country. border arrangement was involved Client confidentiality/ the transaction of the reporting The UK is treated as an EU member (HMRC calls them “service legal privilege obligation, provided that doing so state for these purposes up until providers”). It is very unlikely that The legal privilege exception does not breach legal privilege, and 31 December 2020, and it is lawyers will be promoters. Lawyers will almost always prevent otherwise notify the client. The legal expected that the DAC6 regime will who are involved with cross-border lawyers from making a report privilege exception does not mean continue to apply after the end of arrangements will almost always to HMRC, unless the client has lawyers can ignore DAC6. Many the transition period. be within the scope of the definition expressly waived privilege. If a firms, however, will be involved in A cross-border arrangement is of intermediaries, but as service report cannot be made without little or no cross-border work and reportable if any of several hallmarks providers, not promoters. The rules disclosing privileged information, for them compliance may not be linked to tax avoidance and tax can apply even if the lawyer is not the obligation does not arise, even overly onerous. reporting apply to it. Some, but not advising on tax issues. though some of the information that In addition to new arrangements all, require the main benefit or one of A lawyer who is a service would be disclosed is not privileged from 1 July 2020, the reporting the main benefits of the arrangement provider does not have to report in itself (for example, information obligations also apply to to be obtaining a tax advantage. unless they knew, or could received from third parties). The arrangements entered into between Some apply automatically. The reasonably be expected to know, privilege issues can be complex, and 25 June 2018 and 30 June 2020 analysis of the hallmarks has the that the arrangement fell within specialist advice may be needed in (“look back” arrangements). potential to be a significant piece one of the hallmarks. The hallmarks specific cases. The Law Society of The reporting deadlines were of work in itself. The width of the are complex to apply, so this would England & Wales has published a delayed in response to the definition means that transactions require a good understanding of guidance note on legal professional coronavirus pandemic. The delayed which are purely commercial and the tax issues. HMRC says that privilege and DAC6 which may be reporting deadlines are: have no tax motivation can be caught. service providers are not expected helpful: see www.lawsociety.org.uk/ • “look back” arrangements: to do any additional external topics/tax/dac-6-and-lpp 28 February 2021; Who the rules apply to due beyond what they Where privilege applies, • arrangements between 1 July and The regulations apply to would normally do; and lawyers the lawyer must notify other 31 December 2020: within 30 days intermediaries involved in designing, are only expected to read the intermediaries involved that the beginning on 1 January 2021; marketing or organising reportable information they would normally arrangement is reportable, unless • arrangements from 1 January cross-border arrangements; need to look at, and do not have that would also breach privilege. If 2021: 30 days from certain or making them available for to review everything to which privilege prevents the lawyer from reporting trigger points. implementation (HMRC calls them they have access to check if a reporting, it is also likely to prevent

44 / August 2020 them telling other intermediaries. relevant facts. HMRC may choose Notifications In practice much of the relevant not to charge a penalty, depending information may already have been on all the facts and circumstances. ENTRANCE Jessie WILSON, Kathryn CERTIFICATES ISSUED MACDONALD, Andrew Frances shared with other intermediaries Penalties are appealable to DURING JUNE/JULY Lewis 2020 WILSON, Ross with the client’s consent, or the the First-tier Tribunal. There is ABDEL-RAZIK, Maryam McFARLANE, Lucie Maria WILSON, Sarah Dallimore client may consent to a limited a reasonable excuse defence AHMED, Justine Jamie McKAY, James Robert WOOD, Emily Elizabeth McKENNA, Abigail WOODS, Dylan William waiver of privilege to allow the to a penalty and whether the Anne ANDREWS, Jonathan McLEAN, Iain Donald WUERSCH, Anne intermediaries to discuss the intermediary had reasonable ARTHUR, Helena McLEVY, Leigh Catherine Seraphine reporting requirement. If there are procedures in place to comply Elizabeth McMILLAN, Hayley BAIN, Isabelle Eliza Elizabeth Joan APPLICATIONS FOR no other intermediaries, or the client with the rules. McMURCHIE, Lauren ADMISSION JUNE/ BANAG MONGO, Anais JULY 2020 does not want to waive privilege, Gwenaelle Christine McMURRAY, Hannah Alison ANWAR, Zarah the reporting obligation shifts to the What does it mean for lawyers? BARNETT, Emma Victoria BELL, Scott Robert BELL, Nikkie MACNEILAGE, Jessica taxpayer who used the arrangement These rules have important Harriet Taylor BENES, Ruzena Martina BENNETT, Angie BROWN, Ashley Jane (in most cases, the client). implications for lawyers, even if BONAVENTURA, Iona MALLEY, Sophie MALTMAN, Heather CARMICHAEL, Lisa Anne legal privilege means they will Elizabeth CARR, Bethany Ann BOYLE, Thomas Oliver MANSON, Emma CHRISTIE, Ailie Elizabeth Time limits for making reports rarely have to make a report. Steging Mackenzie CHRISTIE, Fraser Scott BRICE, Emma Nicole MARAMBA, Innocent From 1 January 2021 the time limit Firms should be preparing for CLARK, Miriam Christine BROWN, Debbie Avril Sifelani for making a report is 30 days from DAC6 now, including: CONNELLY, Kevin Edward CAMPBELL, Eilidh Morag MARTIN, Ross CRANSTON, Emily the earliest of the following triggers: • reviewing risk and compliance CAMPBELL, Euan Colin MATHESON, Euan George Chrisanne • the day after the arrangement is procedures; CAMPBELL, Lucy Frances MATHIESON, Iain CROCKER, Camilla Rose made available for implementation; • ensuring they can identify how CAPALDI, Caterina Giulia Thomas CUNNINGHAM, Katie • the day after the arrangement is and when legal privilege applies; CLAXTON, Rowena Lucy MILLER, Corrin Frances DAVIES, Sophie Marie MINTER, Janette DONNELLY, Roisin ready for implementation; • putting procedures in place to COUCHLIN, Emily CURLEY, Michael Thomas Carruthers Colleen • the day the first step in identify cross-border arrangements CURRAN, Kirsty Lauren MITCHELL, Eamonn Craig DUFF, Lucy Georgina implementation is made; at matter opening and keeping CUTHBERTSON, Bernie MONTGOMERY, Kerri DUGAN, Roisin Anne MUKIT, Myeda ENWEGBARA, Philips • for service provider intermediaries, matters under review in case they Marcia DENHEEN, Olivia MURDOCH, Emma Jane Anthony Anaemeze the day after the day the become reportable; DE-PELLETTE, Nicole Elizabeth FLEMING, Charlotte intermediary first provided the aid, • identifying “look back” DUHERIC, Hana Vera MURPHY, Euan Jack Alexandra ESSON, Rebecca NIMMO, Gemma Louise FROTAN, Emma assistance or advice. arrangements; Charlotte NOBLE, Hazel Janet GARDINER, Ross James • creating a central repository of FAIRLEY, Sarah Valerie O’DONNELL, Rebecca HALLEY, James Georgia Multiple intermediaries cross-border arrangements and FERGUSON, Evana HARDING, Andrew Paul FERGUSSON, Andie O’HARE, Caitlin HARVEY, Douglas James Where more than one intermediary recording the outcome of reviews; Spiers O’NEILL, Megan HASTON, Nicola is involved, all have a reporting • recording details of DAC6 reviews FERGUSSON, Hannah PANGEVA, Slavina HIGGINS, Katie Stoycheva obligation. However, an intermediary and outcomes on individual files; Margaret HODGSON, Elizabeth FORBES, Robbie Stuart PAUL, Abigail Sara IANNARELLI, Lesley Ann is exempted from the reporting • making colleagues aware of the FRASER, Lauren PELOSI, Mark John IRELAND, Kate Elizbeth obligation if another intermediary rules and providing clear guidance Anne-Louise RICE, Lucy Katy JAGLA, Catriona Esther FULTON, Craig John RICHARDSON, Jack has made a report and the first on internal procedures for dealing JORDAN, Thomas William David Charles intermediary holds evidence of that, with DAC6; GALBRAITH, Nicole ROUDH, Simon Dildarjeet KANE, Cameron Macleod Singh and can demonstrate that it does not • creating flow charts/decision Margaret KERSHAW, Victoria GAMBA, Elaine Miller SAMSON, James have any other reportable information trees to help colleagues decide if Louise GARDINER, Sophie Alexander Ewing KHAN, Nisar SCOTT, Erin Atlanta relating to the arrangement. HMRC arrangements are reportable; Victoria KHAN, Said Jamil SCOTT, Susannah Louise GARLAND, Iona Eilidh LAING, Caroline Margaret will issue the reporting intermediary • reviewing letters of engagement SHORT, Michael Kenneth GHUMRO, Imtiaz Ahmed MACDONOUGH, Carly with an arrangement reference to exclude DAC6 reviews from the SIEDLECKI, Igor Grzegorz GILLAN, Baktosch Alana SIMPSON, Ross James number (ARN), which it must provide scope of work, and to allow the firm GOLDBECK, Matthias McINTYRE, Ashleigh Alexander GRANT, Gillian Elizabeth McKIRDY, Erin Mary to the other intermediaries involved. the option of charging for reviews; Harriet Hazel SKINNER, Celine Page GRAY, McLELLAND, Ross GRAY, Michael SMART, Kathryn Ann The ARN is evidence that the report • where multiple intermediaries are William HAIR, Charlotte Anna SOMMERVILLE, Chloe has been made. involved, agreeing how the DAC6 MACLEOD, Maria Marion Jemima MAGEE, Carys Erin compliance will be dealt with at HARKNESS, Ciaran SPENCE, Alexander MOHAMMED, Omar Penalties the outset; and ensuring effective Andrew STEEN, Anna Katie STEVENSON, Shannon Hassan Penalties apply for failure to communication and co-ordination as HARRIS, Wendy Elizabeth HENDRIE, Emma Louise Margaret MORRISON, Holly Rachel comply with the the matter progresses. HILL, Rachel Margaret STRACHAN, Joanna NUTTALL, Elspeth Mary Grace reporting requirements, The measures that HO, Vivien Mary HORNSBY, Mallory STREET, Kirsty Ann O’SULLIVAN, Emily Rose or failure to notify are appropriate will HOUSTON, Jordan SUMMERS, Courtney PEOPLES, Erin Louise other intermediaries vary from firm to JACK, Lucy Katerina Jade PORTER, Cheryl Stewart SADIQ, Muhammad or the client that firm and, depending JOHNSON, Alexander SUTHERLAND, Sharron Adam SWIRA, Monalisa Pervez the transaction is on the types of work JOHNSTON, Elliot Iain THOMSON, Chloe Janet SELLA, Francesca reportable where legal undertaken, may be JONES, Ben Thomas TORRANCE, Charlotte SHABBIR, Muhammad Bilaal privilege applies. The relatively limited. As Wynton Mary Jane Heather KEENAN, Paul Gerard TOWNSEND, Jack SMITHERAM, Jie default penalty is a Thompson is a always, it is not enough KING, Deborah Louise TOWNSEND, Laura Alice STEVENSON, Katie one off penalty of up partner with to be compliant: KORNEJEVA, Anastasija WARK, Alexandra Rose Maureen KROLL, Sarah Hornung WATRET, Charlotte WARD, Victoria Joanne to £5,000. The amount Brodies and a compliance must also member of the McALLISTER, Lindsay Frances WATSON, Mark John of the penalty is Law Society of be demonstrated, so a Regan WEBB, Kirstie Anne Reid McCORMICK, Kirsty WILSON, Ginny WHITE, Charlotte Joy determined by HMRC, Scotland Tax Law little planning now may taking account of all the Committee go a long way.

August 2020 \ 45 In practice

RISK MANAGEMENT Wills and executries: red flags and claims On behalf of Lockton, the authors consider some common issues arising from wills, trusts and executries, and provide some tips for avoiding problems

February File note everything This cannot happen in every examples (largely at lower values) 2020, Lockton We see numerous claims where it is situation, though, especially involve bequests for specific items published a alleged that the testator’s instructions where time is of the essence. where those have already been Red Flag were not properly reflected in the Failure to follow the practice is disponed; or specific sums of money. In Checklist for final document. These are largely not necessarily negligent, as the Good practice would be to raise the will drafting. raised by disappointed beneficiaries court found in Wharton v Bancroft possibility of cash bequests being This article who were told they would receive [2011] EWHC 3250 (Ch). At para in the form of a percentage of the follows on from that checklist, and something but didn’t. Without proper 110 the judge rejected criticisms estate rather than a specific figure, covers the areas in which claims file notes of discussions with the of the solicitor for failing to follow in case a will is not revisited (a arise most commonly and some testator and decisions made, the the rule, saying: “His job was to £150,000 bequest in 1990 is very ways in which these can be avoided. solicitor is in a considerably more take the will of a dying man. A different to the same in 2020). difficult position when arguing solicitor so placed cannot simply Who can bring a claim? that the will or trust reflected the conjure up a medical attendant... 2. Drafting and signing In brief, a solicitor owes a general testator’s final wishes. Without proper I do not think Mr Bancroft is to the documents duty to draft a will or trust with file notes it often becomes an issue of be criticised for deciding to make It goes without saying that the reasonable skill and care. If they fail credibility, involving a lengthier and his own assessment (accepted as document must be competently to do so, a claim can arise, provided trickier process. correct) and to get on with the job drafted and should reflect the the claimant can prove what was of drawing a will in contemplation of testator’s intentions. Below are intended or went wrong and point Who is the client? marriage so that Mr Wharton could some further points which should to the loss caused. It seems obvious that instructions marry. I certainly do not think that be considered at this stage to While space does not permit should be taken directly from ‘the golden rule’ has in the present avoid claims. more detailed analysis, it is worth the testator, and particular care case anything to do with the ease saying that the identity of a should be taken where there is any with which I may infer coercion.” Avoid delay claimant is important (and complex) suspicion that the instructions are This is obviously a fine line. Delaying meeting to take in these types of cases. Case law not the testator’s. Claims arising However, the solicitor should not instructions, or drafting or finalising a has identified that claims can be from assertions of “undue influence” hesitate or delay in drafting a will, is risky, and can result in claims brought by an executor where the remain common, and it is important will due to possible (rather than from either an executor, say on the loss is suffered by the estate, and that proper instructions are taken obvious) doubt as to the testator’s basis of increased tax payable, or by a disappointed beneficiary in whereby the testator knows what is capacity, or to obtain medical a disappointed beneficiary where certain circumstances. being disposed of and understands practitioner input, particularly where the delay prevents a bequest being There are three main stages at the legal effect of the gifts in their will. time is of the essence, otherwise made. A solicitor must prepare the which claims arise relating to wills, the solicitor may be liable to the testator’s will within a reasonable trusts and executries: Capacity disappointed beneficiaries of the timescale. If urgency is needed (and (1) taking instructions from the client; The “golden rule” in will drafting unfinished will. apparent), even a short delay will (2) drafting the documents and is for the solicitor to be sure of the likely be deemed unreasonable. having them signed; and testator’s mental capacity (solicitors Points to clarify While solicitors are generally very (3) management of the trust should follow the Law Society of It is relatively common for claims busy, claims under this heading are or executry. Scotland’s guidance on vulnerable to arise where a property is left to normally relatively sizeable, and clients). If there are uncertainties, a specified person in a will, only they are in the most part avoidable 1. Taking instructions normally the best practice could for there to be an undischarged with adequate preparation and good It is a given that a solicitor must be to have a will witnessed or survivorship destination in the work practices. take appropriate instructions approved by a medical practitioner title, leading to the bequest being which accurately reflect the (where they are willing), who should ineffective. This can result in a large Tax testator’s wishes, but there examine the testator and record claim by a disappointed beneficiary Claims arising from a will or trust are several other pitfalls. their examination and findings. for the value of the property. Other drafted without the proper care

46 / August 2020 Possible risks into the future In the COVID-19 world there appears to be a greater demand for wills, coupled with new methods of execution and law firms offering online wills. These bring with them further risks and should be approached meticulously and with great care. The Law Society of Scotland released temporary guidance notes on 25 March 2020 setting out best practice in the circumstances (www.lawscot.org.uk/ news-and-events/law-society-news/ coronavirus-updates/). At the outset, firms should have in place a proper method by which to take and note full instructions while ensuring that the testator has proper capacity and is not being unduly influenced. When arranging for the wills to be signed or expertise in relation to tax are entirely avoid liability where Distributions and witnessed, the Society guidance also relatively common, resulting they don’t ensure that the will is Claims and complaints are relatively should be followed. in large inheritance or capital validly executed by asking to see common where beneficiaries have While it remains unclear how the gains tax bills being payable, or an it afterwards. been overpaid, or distributions courts will view negligence under available nil rate band being lost. Issues with drafting and signing have been made on the basis of these circumstances, all efforts Solicitors should take great care are more often caused by failings in an invalid will and later require to should be made to minimise risk by when providing tax advice; usually, a firm’s processes or systems than be recovered. Making distributions following guidance and fully noting it should only be given where such technical incompetence, and key without ensuring the payee’s discussions and considerations. expertise exists within the firm, or issues can be allowed to slip under details and identity is too common, We would also say that any wills has been sought externally. Many the radar. Having robust systems and more worrying in these days created, signed and witnessed solicitors now expressly exclude tax in place is an important failsafe to of online identity fraud. Having with COVID-19 restrictions in advice in their engagement letters prompt good attention to detail and appropriate and robust systems for place should be reconsidered as for standard wills, or recommend suitable follow-up steps. checking where funds should be those restrictions ease. This might in writing that the input of an paid is a vital part of the modern simply involve arranging for the accountant/financial adviser/tax 3. Managing the trust solicitor’s job. These claims are often will to be re-signed when (for lawyer is sought, thereby spreading or executry large, (in the most part) indefensible, example) a witness is available, but the risk profile. Once the executry or trust is and if due to criminal intervention, reconsideration will minimise the underway, in some cases we have the funds are often not recovered. risk profile more generally. Signing the will/trust seen a tendency to relax a little. Finally, in general we urge It seems obvious that wills and trust Given the size of some trusts Claims by executors/trustees solicitors to find the time to stop deeds need to be properly signed; and executries, points can easily It is clear that the executor/trustee and think about what needs to however, there are numerous be overlooked without proper may claim against a solicitor for be done in each executry and examples of this not being done. procedures in place. losses to the estate where those trust, however routine those steps Claims have also been successfully losses arise post-death, during may seem. A suitable process, raised where a solicitor has failed The basics the administration and due to the questionnaire or checklist (such as to provide the testator with full and Claims have arisen where the solicitor’s negligence. One example Lockton’s own) should be created proper instructions as to signing. solicitor fails to arrange basic is a delay in obtaining confirmation and a system adopted which the To protect against claims, the (and easily missed) points such whereby income is lost. More entire business should be required will should be checked carefully as collection of rents, payment difficult is whether the executor/ to follow. Detailed file notes should once signed. Whilst that might of utility bills, or even necessary trustee can recover post-death be taken at all points, given that the seem unnecessarily cautious, insurances for a property. One losses suffered by the estate testator’s instructions are key to studies suggest the majority of such claim involved a fire at a resulting from negligent advice the whole affair. The steps will soon the population are not familiar property where the solicitor had not given to the testator during their become second nature and the risk with signing formal documents, arranged buildings and contents lifetime. In Fraser v McArthur Stewart of claims can only be reduced. and a quick check is considerably insurance. The beneficiaries looked [2008] CSOH 159 the court found more efficient than discovering to the solicitor to compensate the that no liability may attach for This article was co-authored for and dealing with errors years later, substantial decrease in its value. incorrect advice even where that is Lockton by Alan Calvert, partner, on the testator’s death. A solicitor Insurance had been overlooked relied on by the testator, as long as and Ed Grundy, senior solicitor, cannot compel a testator to return following a change of file handlers, the will reflects their final intentions of Brodies’ Dispute Resolution the will to them for safekeeping something a checklist or similar – further reinforcing the importance team, specialising in professional (and checking), but they may not would likely have caught. of file notes and proper procedures. indemnity claims

August 2020 \ 47 ASK ASH Dreading going back My anxiety levels shoot up at the prospect of returning to the office

Dear Ash, You therefore need to try to your employer about phasing in to ensure that social distance I have been working from home source some help from your GP; your return to work in the office. measures are maintained, now since the beginning of and I’m sure you won’t be If your productivity at home has therefore it is worth asking about lockdown, but my employer alone in seeking such been good, there may be working from home. has made clear that we are all help. Your GP may be scope for you at least In addition I highly recommend to return to the office from next able to provide some to seek to work from that you go for a brisk 30-minute week. Although I’m normally quite helpful technical home a couple of walk or running on a regular a bubbly and upbeat person, I support, such as days a week, and basis, as the endorphins from am struggling with the idea of simple breathing or this may help you such activities should also help returning to work. I have managed coping strategies; to cope better with with improving your outlook, and to get into a good routine at home medication may also your anxiety levels. provide you with more confidence and am dreading the prospect be an option depending And your employer may about the outside world. of commuting to work and of upon the severity of your have to adopt some form of rota There is still much uncertainty interacting with colleagues in the condition. for employees working from about future lockdown measures, office. My anxiety levels increase I also suggest speaking to the office in any case, in order therefore try to find a flexible every time I think about going solution with your employer back to the office, but I’m also which will not only help you to conscious that I don’t want to lose Send your queries to Ash keep safe on a physical level but my job, especially in the current “Ash” is a solicitor who is willing to answer work-related queries from will help to address your mental market conditions. solicitors and other legal professionals, which can be put to her via the health. You are not alone in how editor: [email protected]. Confidence will be respected and any you are feeling; and you may find Ash replies: advice published will be anonymised. it helpful to seek some help online Lockdown has had an inevitable Please note that letters to Ash are not received at the Law Society in the form of blogs from others impact on everyone’s mental health: of Scotland. The Society offers a support service for trainees through with similar concerns or from even those who may not have its Education, Training & Qualifications team. Email legaleduc@ professional support organisations previously experienced anxiety lawscot.org.uk or phone 0131 226 7411 (select option 3). such as LawCare. Try to remain seem to have been impacted. positive, and keep safe.

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August 2020 \ 49