SFCs ready to go - The Journal Online

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•Journal_12-03
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lournal
THE
OF THE LAW SOCIETY OF SCOTLAND
volume 48
no 12
december 03
Money
talks
SFCs ready to go
INSIDE ›› DOUGLAS MILL PRO BONO DISCRIMINATION AGRICULTURE NEIL McINTOSH
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CONTENTS
december 2003 vol 48 no 12
Total Net
Circulation:
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journal@connectcommunications.co.uk
Features ››
P48
(issue specific
May 03)
Average Net Circulation: 9,528 (Jan-Jun 03)
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President: Joe Platt
Vice-President: Duncan Murray
Secretary: Douglas Mill
EDITORIAL OFFICE
Editor: David G. Cameron
Connect Communications
Studio 2001, Mile End
Paisley PA1 1JS
t: 0141 561 0300
f: 0141 561 0400
e: journal@connectcommunications.co.uk
w: www.connectcommunications.co.uk
Deputy Editor: Peter Nicholson
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Review Editor: Alistair Bonnington
e: alistair.bonnington@bbc.co.uk
Design Editor: Gillian Park
t: 0141 560 3020
e: gillian@connectcommunications.co.uk
P17 FINANCIAL CENTRES
P29 SERVICE IN THE EU
The first Solicitors’
Financial Centres in
Scotland are ready to
open. Peter Nicholson
explores the concept
A practical guide by
George Jamieson on how
to unravel the rules
applying in the various
Member States
Regulars ››
P22 THE FUTURE NOW
P34 CHARITY SPECIAL
P7 PRESIDENT
Law Society Chief
Executive Douglas Mill on
why we should be alert
to what is happening in
England and Wales
Charities provide a
seasonal reminder of the
importance to them of
legacy giving
P9 OPINION
P26 PRO BONO
Sir Neil McIntosh explains
how the Judicial
Appointments Board for
Scotland wants to open
up the process for
potential applicants
Roger Mackenzie
investigates whether pro
bono work is likely to
acquire the higher profile
it now has down south
P5 EDITOR
P10 LETTERS
P13 HEARSAY
Faculty of Advocates
Mackinnons
Aamer Anwar
P44 INTERVIEW
ADVERTISING
Sales manager: Julie Twaddell
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e: julie@connectcommunications.co.uk
P32 PEOPLE
P40 PROFESSIONAL PRACTICE
Risk management
Information technology
P46 SOCIETY NEWS
Mediation
Victim statements
Lawseal
Queen’s speech
P52 PROFESSIONAL BRIEFING
Criminal court
Discipline Tribunal
Employment
Agriculture
Incapacity
Sport
Websites
Book reviews
Sales executive: Simon O’Rourke
t: 0141 560 3024
e: simon@connectcommunications.co.uk
Front cover photography by
Brian McDonough
DISCLAIMERS: The views expressed in the
Journal of the Law Society of Scotland are those
of invited contributors and not necessarily those
of the Law Society of Scotland.The Law Society
of Scotland does not endorse any goods or
services advertised, nor any claims or
representations made in any advertisement, in
the Journal and accepts no liability to any person
for loss or damage suffered as a consequence of
their responding to, or placing reliance upon any
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Readers should make appropriate enquiries and
satisfy themselves before 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 their own risk.
© The Law Society of Scotland, 2003
ISSN: 0458-8711
P60 PROPERTY LAWYER
Asbestos safety
HITF
SDLT and registration
P65 UPDATE
P66 CLASSIFIED
P70 NOTIFICATIONS
P60
P72 RECRUITMENT
Journal december 2003 vol 48 no 12
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editorial
Solicitors in Scotland, and their Law Society, face
an uphill battle to persuade the big players down
south that any solution for England’s problems is
not necessarily the right one here
major issues facing the
profession, the points he
wanted to emphasise most
are that there is a threat
to the solicitors’ profession
as we know it, and that
threat is not somewhere
in the future but with us
now.
Warnings of fundamental
issues facing the profession
have to be taken seriously
David Cameron
is editor of the
Journal of the Law
Society of Scotland
and managing
director of Connect
Communications,
Scotland’s leading
contract publishing
company, based in
Paisley.
Solicitors may give in
occasionally to the
temptation to view the
Law Society of Scotland
like some Orwellian Big
Brother figure – the best
situation is if it just leaves
you to get on with your
practice in peace. From
the perspective of the
Society, the world at
present must look as if it is
full of much larger
predators, any of which
could finish it off without
much difficulty.
Discussing with Douglas
Mill what title to give his
article (“Clear and Present
Danger”, page 22) on the
The Clementi review, the
Department for
Constitutional Affairs, the
Office of Fair Trading, the
EU Competition
Commission, and major
commercial interests (even
including some leading
City of London legal firms)
all have the potential,
directly or indirectly, to
bring about changes which
would fundamentally affect
the practice of every
solicitor in Scotland and
the position of the Law
Society as their regulator.
Already the Government
has lost patience with the
ability of the Law Society
of England and Wales to
manage its backlog of
complaints, the latest
figures showing a steady
rise despite the Society
committing substantial
additional resources. A
“Legal Services Complaints
Commissioner” – currently
the Legal Services
Ombudsman, wearing a
different hat – has been
appointed to oversee the
complaints handling
process, setting and
monitoring targets, with
the power to impose fines,
reported as potentially
reaching seven figures, for
inadequate performance. It
is quite possible that
complaints handling could
be removed from the Law
Society altogether.
Unfortunately solicitors in
Scotland, and their Law
Society, face an uphill
battle to persuade the big
players down south that
any solution for England’s
problems is not necessarily
the right one here –
though the Society’s
leaders have pressed their
case personally with David
Clementi, as they do with
others whenever the
opportunity arises. And
given the number of
different forces at work,
success in one direction is
no guarantee that the
other risks will not
materialise.
In the face of such
foreboding we are glad to
be able to feature also in
this issue the imminent
opening of the first
Solicitors’ Financial Centres
in Scotland.The hiving off
by solicitors of their
financial business has
become quite common as
a result of the greatly
increased regulatory
burden under the Financial
Services Authority. What is
different about SFCs is
that they are clearly
demarcated as
independent of the
founding firm or firms, and
business referred from any
other solicitor is
conducted in such a way
as to strengthen rather
than weaken the link
between the referring
solicitor and his or her
client. In short the
existence of an SFC opens
up a potential new source
of income for all local
solicitors, both through a
percentage of fees from
business referred and
through additional ancillary
legal business generated.
And concluding on that
note we wish you all a
very happy Christmas.
e: journal@connectcommunications.co.uk
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president
As another year draws to an end, we can reflect that it
had some good bits and some bad bits for the profession
– but we have maintained our standards
Staying awake, actually
Joe Platt
is president of
the Law Society
of Scotland
The tradition of looking back to the
old year and forward to the new
shows more than anything that life is
a rolling programme, as Forrest
Gump might have said. If he did, I was
probably asleep at the time as
schmaltz has that effect on me. I
certainly wish I had been asleep on
the last Saturday in November
between 4pm and 6pm in the
cinema complex on West Nile Street,
instead of being wide awake despite
the Dumbarton Faculty Dinner the
previous evening.
I know that the accepted wisdom is
that the main requirement for a
shrieval appointment is a Teflon
coated bladder for sitting endless
hours on the bench, but I reckon an
equally important attribute is the
ability to listen to the members of
the local faculty into the small hours
in a local hotel. It can be a cathartic
annual experience for practitioners to
interrupt, speak without being spoken
to and generally enjoy some very
good company when the courtroom
usually forbids such pleasures. With
four from the bench gracefully
accepting the invitation and with no
It’s good to know that the Government, in
looking at the composition of the House of
Lords, is going to regulate peers in accordance
with the standards they themselves demand.
possibility of escape, it was an
opportunity enthusiastically embraced
by the Dumbarton Faculty. A good
evening was had by all, resolving the
past well into the future, beyond the
early hours and setting the scene for
the festive season and the new year.
Anyway, what started this year and
didn’t finish? A fair amount actually.
The mess made of the new stamp
duty land tax is not going to be over
before the end of the year. Can all
conveyancers please encourage any
client adversely affected to complain
to the appropriate authority? The Title
Conditions (Scotland) Act is set to
cause confusion for a number of
years. But there is good news too.
The good legislation passed by the
Parliaments, including the Council of
the Law Society of Scotland Act 2003
will show benefits for years to come.
Some benefits will need time to take
effect, but patience for good
legislation is something many people
have.
A year is a short time in politics and
the law. Nine years, however, is a long
time and it is reportedly the ninth
year in a row that the European
Court of Auditors in Luxembourg
has refused to certify the accounts of
the EC. It is understandably causing
concern that the European
Commission is looking into how the
professions in Europe are regulated!
The UK Parliament is also looking at
professional regulation – of the legal
professions in England and Wales. It’s
good to know that the Government,
in looking at the composition of the
House of Lords, is going to regulate
peers in accordance with the
standards they themselves demand.
Better regulation in Parliament will
show us all standards to which we
may wish to aspire and no doubt give
the Government a view of regulation
the profession have seen for many
years.
But, as I was saying, I unfortunately
was not asleep in the cinema when I
wish I had been, which is a shame
because one of the best things about
my year so far is that the schedule
has meant that I have acquired the
ability to sleep almost anywhere –
especially on trains and planes.
Unfortunately this new talent let me
down during the cinematic hit of the
season, “Love Actually”. It should have
been called “Clichés Actually” or
“You’ll Cringe Actually”.The film
seemed to be designed to show that
the Brits can make films every bit as
bad as anything Hollywood has
produced. For the mistake I made in
going and taking the perspective of
Scrooge on a “feelgood” film I blame
the legal profession – why not,
everything else is our fault – since
because of the aforementioned
schedule and trying to resolve the
issues of the years past, present and
future I did not have time to read the
reviews which were presumably
damning, and still felt a little too
ragged at the edges for that amount
of cheer. It is comforting to know that
despite the lawyer jokes it seems it is
in fact actors who will do anything so
long as there’s money in it.
Since everyone is encouraged to
complain nowadays I’ll complain to
the Cinematic Services Ombudsman
and will get my money back,
compensation for the cost of my calls
and stamps and a hefty award of
compensation. Sometimes the
problem with sleeping anywhere, any
time, any place is that it can lead to
dreams.
Reality on the other hand is that the
Scottish system is up there with the
“Best Actually” in terms of its
members, business ideas or
commitment to justice. I would like to
wish the profession a successful year
in which the Scottish legal system
gains better recognition for its value –
that would give us all some good
cheer!
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opinion
Keep sane, if not sober
sundry unexecuted
dispositions, computer
equipment and floor
coverings could outweigh
any savings.
There is no point in playing
Scrooge when it comes to
the office Christmas party
As a profession we are
blessed with a broad range
of experts happy to share
with us their systems and
protocols for running an
efficient office. Many of
them do so in this very
publication and indeed
there are times when one
cannot but feel that The
Journal consists largely of
exhortations to organise,
motivate, synergise and
above all focus. Some of
you may have felt that not
a lot of this is terribly
relevant when you practise
up a close in Springburn,
but in my view where it
really falls down is that it
fails to give us any helpful
advice on how to handle
the annual holly jolly, the
office party. Well,
somebody has to do it, so
here are a few tips for
surviving that lethal
combination of mistletoe
and wine.
Party or bonus
Margaret Scanlan
is a family law
specialist with
Russells Gibson
McCaffrey in
Glasgow.
Don’t even think about it.
Your staff expect both and
any attempt to set one off
against the other will result
in a collective huff lasting
well into the new year. It
could be March before the
froideur in the typing pool
melts and June before you
see a drinkable cup of tea.
Part funding
In these cash-strapped
times this may seem a
Lunch or dinner
Get the whole thing over
by 5pm and home to an
astonished spouse by teatime
useful way of limiting the
exponential growth in the
costs of this annual
extravaganza but you have
to balance any savings
against the familial
consequences of returning
home at 4 am since it will
take the cashier many
many hours to allocate the
drinks bill as between
those who had one glass
of wine, a half pint shandy
or six Bacardi Breezers
and a couple of pints of
heavy.
In-house
Again superficially
attractive, given that a
round of drinks in any
establishment adequate to
meet the rigorous
standards of the
designated party planner
would go some way
towards the purchase of a
small family car. However
there is bound to come a
point in the evening when
someone, perhaps you, will
feel obliged to
demonstrate to the
younger members of staff
their groovy sixties dance
moves with a glass of red
wine in their hand.The
consequences of this for
Lunch seems such a good
idea. Get the whole thing
over by 5 pm and home
to an astonished spouse
by teatime. Not a chance,
you will simply be
hammered by 4 pm
instead of 8 pm and the
available drinking period
between the end of the
meal and the point where
you decide to go clubbing
with the junior staff
extended to the point
where the possibility of an
altercation with a bouncer
is increased by a factor of
10.
Behaviour protocols
There is little to be gained
by developing behaviour
protocols for the event
itself. Any attempt to
impose such protocols
mid-partying will result in
massed derision,
accompanied by a range of
language with which you
are not familiar, despite
your extensive criminal
practice, some quite
startling body language
and possibly the lobbing of
various items of office
equipment at you, some of
which could be quite
heavy. However a postevent protocol is essential
and I offer you mine:
behave as if it never
happened.
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letters
With apologies to Paul Merton
I cannot have been the only one
to read November’s Journal with
a galloping sense of foreboding.
First, Robert Rennie confirmed
the terminal decline of the
conveyancer.Then David
O’Donnell (with some dexterity)
managed to muddy the waters
still further on conflict of interest.
Not to be outdone, David
Nichols graced us with his
premonition of the wholescale
demolition of Scots trust law as
we know it, Bruce Ritchie
reminded us of the PR disaster
which masquerades as the
“Terms of Engagement Letter”
and Leslie Cumming/David Adie
reminded us of the pleasures that
are the Proceeds of Crime Act
and SDLT (the latter brought in
because of the skulduggery of
our English counterparts).
However, surely the daddy of
them all was the (admittedly
lukewarm) attempt by Linsey
Lewin to defend the indefensible
– “The Single Survey Pilot”, that
wonderfully inept proposal
dreamt up by those doyens of
wisdom who call themselves the
Housing Improvement Task Force.
As we all know, this perverse
concept raises a plethora of
completely unworkable issues.
Do we really think a seller will
stump up a further £300 (for the
benefit of the purchaser) with, at
most, a hazy expectation that it
might be repaid? Are purchasers’
solicitors really going to advise
their client to tap into such a
survey with all the nefarious
implications for solicitor and
client that would follow? Do we
really, truly foresee the insurance
industry picking up the tab under
a “hidden defects guarantee” for
a paltry £25 a pop in the current
climate? Yeah … right.
As our surveying friends already
know, this is another example of
the abuse of power which is
being foisted on us all by the
Scottish Executive –
consumerism gone absolutely
mad. Despite the weight of legal
opinion and precedent against
this proposal, and the numerous
practical difficulties which will
inevitably follow, they blunder on
with their articulated view – “if
the law doesn’t work, we will just
change it”.That will really help.
My daughter asked me last week
what I would put into Room 101.
Well, the Single Survey Pilot is
most assuredly a deserving
candidate, beside those other
luminaries – the SCEEB, the
stakeholder pension, Equitable
Getalife and the Holyrood
building. Room for any more?
Stuart M Bain
Anderson Bain & Co, Aberdeen
A case of form over function?
Oh dear, oh dear! Just when the
profession thought itself at crisis
point over the scarcity of entrants
wishing to practise legal aid, what
do those folk at SLAB do? They go
all out on a rejig of their forms. In
the interests of progress, you
would think. From the perspective
of someone at the coal face, as it
were, I cannot see how these
forms will quell the crisis. If
anything, I fear they will fan the
flames of frustration among
existing legal aid practitioners, and
in consequence our numbers can
only founder.
And I’m not even talking of the
peer review procedure at this
stage, which has yet to commence,
and is certainly a very laudable
idea in principle. No, I’m talking
about the basics, like the fact that
SLAB had months to formulate
these forms, yet only released the
prototypes to practising lawyers, as
a fait accompli, during the month
before D-Day on 1 October. And
they’re full of mistakes. Now, I’m
not going to enumerate them all
here. However, these mistakes are
basic stuff – like having enough
boxes for all the figures in the
Advice and Assistance reference
number at question 13 of
CIV/SOL (three too few). Or like
including the notice to opponent
in the Section D checklist on page
4 as one of the “documents
necessary for full consideration”.
This firm has already had post-DDay applications returned for lack
of notice to opponent. It’s basic
stuff like making the boxes big
enough to write in, or having
more than one opponent’s details
box (perish the thought that you
might wish to sue more than one
defender!). It’s basic stuff, like why
do we have to write “N/A” instead
of simply leaving a box blank?
And don’t even get me started on
the experts’ information box!
It’s basic stuff like why do we have
to hand-write the Memorandum
now? Oops, I mean “Statutory
Statement” (at least I think I do,
because that’s what the checklist
says – though the item itself is
simply headed “Statement”,
presumably not the same thing as
the “Applicant’s Statement”,
despite the fact that the applicant
signs it!). I can feel premature hair
loss setting in. Of course, after the
obligatory dose of writer’s cramp
involved in completing one of
these forms, forms are inevitably
going to get lost in the post, or at
least that’s what clients may say
when they want you to send them
another one. At least with the old
Memorandum you could save it to
disk and print as many copies as
you needed.
Now perhaps SLAB will launch
digital versions of the new forms
on Acrobat Reader like they did
with the old forms. However
these were a most egregious
waste of time. Not only could you
not even save them, but if you
were brave enough to attempt to
use them, the print was so small as
to rapidly induce the onset of
myopia in the unfortunate proof
reader. And the new forms are to
be read by computers? Given the
hapless progeny of SLAB’s
previous fumblings in IT, this idea
fills me with dread.
Anyway, on the bright side
(because Monty Python said you
should always look on it) the new
forms do have some plus points –
they’ll save me a lot of money in
hairdressing bills!
Jonathan Kiddie
Govan Law Centre, Glasgow
Send your letters to
The editor, The Journal, Studio 2001, Mile End, Paisley PA1 1JS
f: 0141 561 0400 e: journal@connectcommunications.co.uk
10 :
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Form over function: Response
from the Scottish Legal Aid Board
It is always helpful to receive
feedback, even though Mr Kiddie’s
letter is more negative than the
comments we have received from
those members of the profession
who have successfully adapted to
the reform and have welcomed
the changes introduced.
The reforms brought a package of
change to civil legal aid, with each
individual element of reform
reliant on being part of the whole.
It was therefore not possible to
have reform without a radical
change to our forms.The scope of
the reform and the benefits to be
derived from it are far more
extensive than the limited aspect
on which Mr Kiddie comments.
Ministers announced the reform
of civil legal aid in February of this
year, and set a deadline for its
implementation by 1 October.The
timescale gave the Board and the
Society only a few months in
which to prepare and implement
widescale changes, many of a
fundamental nature to the
previous process, not least the
revisal of our principal application
form for civil legal aid. Prior to
implementation and in the month
following we have met with
upwards of 1,000 practitioners
through a series of joint seminars
with the Society and local faculties
across Scotland. We also run a civil
reform helpline and would
encourage any solicitors to use
this if they do have questions –
0131 240 2007.The new forms
were also designed with input
from design, plain language and
usability experts with a view to
making them more user friendly
and easier to complete than those
they replaced, and also with a view
to them being electronically
scanned. When we issued the
new forms we intimated that we
expected to make revisions based
on experience and feedback; we
still expect to issue revised forms
by the spring.
We accept that there are some
errors in the forms but they are
not full of mistakes as Mr Kiddie
would lead you to believe.
Addressing the specific issues
raised by Mr Kiddie:
Advice and assistance reference
number: this error was identified
by us and we issued a note to the
profession indicating that to
overcome this problem the first
four numbers could be omitted.
Notice to opponent: we informed
the profession in advance of the
introduction of the new form to
continue to use the existing notice
to opponent until further notice.
The notice to opponent was not
included in the checklist because
when the second phase of our
civil computer system becomes
operational in January 2004,
intimation will become an
automated process.
Returned forms: we advised the
profession that we had changed
our practice so that all
applications, even if incomplete,
are registered and not returned.
We simply ask the solicitor to
supply us with any missing
information. We cannot however
do this where the application falls
below the minimum statutory
requirements, e.g. where it lacks
signatures or sufficient information
for intimation purposes. Since the
reforms were introduced, our
experience is that applications
registration is faster, there are
better and quicker responses by
the profession for additional
information, and as a result there
has been a substantial decrease in
the number of forms returned.
Box sizes: in the guidance notes
which accompany the solicitor’s
application form we made it clear
that if additional space was
required in which to provide
information appendix A attached
to the form could be used for this
purpose. If the case involved more
than once opponent details of the
other opponents could be
provided there. We are reviewing
how solicitors are completing the
forms and we will amend the
amount of space given for answers
if this will make the forms easier
to use.
Writing in ‘N/A’: we again made it
clear in the guidance notes that
unless indicated otherwise,
solicitors should assume that all
questions are mandatory and that
if an answer cannot be provided
the box should be marked either
‘not applicable’ or ‘not known’.
Handwriting the memorandum:
first, there is no statutory basis for
a “memorandum” and we
explained to the profession that
the statement referred to in the
Acrobat Approval which costs
£35+VAT. We will also be
redeveloping our website to
improve access and usability in
December.
E-business: the Board has a
successful track record of
implementing new computer
systems.The launch next year of
advice and assistance by e-business
will enable solicitors to deal
electronically with the Board for
intimations of grants, increases and
accounts. This will be extended to
civil and criminal legal aid later in
2004.
Mr Kiddie may indeed wish to
look on the bright side, as these
developments will make the
process of completing forms,
Mr Kiddie may indeed wish to look on
the bright side, as these developments
will make the process of completing
forms, obtaining decisions and
submitting accounts even easier.
solicitor’s form was in fact the
document previously known and
referred to as the “memorandum”.
We will however amend the form
to make this clearer. Secondly, this
section of the form does not have
to be handwritten. Electronic
versions are available which enable
this section to be completed on
computer. For those firms who are
unable to complete the form in
this way, we will accept attached
typed documents.
Digital versions: these have been
available since the new forms
were issued from our website at
www.slabpro.org.uk and we have
advised the profession in at least
three mailshots. All of the forms
that solicitors complete are
available in interactive formats.
There a number of software
products which enable data on
forms to be saved, such as Adobe
obtaining decisions and submitting
accounts even easier.
The Board is committed to
working in partnership and we
encourage the profession to
provide us with feedback so that
we can act on suggestions and
together, improve the legal aid
system and deliver a better
service. We have recently
requested feedback from local
faculties on all aspects of the
reforms, to help identify any
suggestions for refinements to the
processes.
We will report back on how we
will act on suggested
improvements. Please contact me
at the Board or by email to
civilreform@slab.org.uk.
Tom Murray,
Director of Legal Services,
Scottish Legal Aid Board
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letters
LLPs and a good night’s sleep
I refer to Ian Tweedie’s letter
commenting on the liability issues
of members of an LLP and
members getting “a good night’s
sleep” as referred to in October’s
Journal. I would like to clarify the
principles of limited liability given
that the reduction of personal
exposure will be one of the most
important reasons for a firm
incorporating as an LLP.
Ian Tweedie’s reference to Alistair
Sim’s quote is related to section
6(4) of the Limited Liability
Partnership Act 2000.There are
two points which need to be
made here.The first principle is
that whilst the Act does certainly
create the possibility of personal
liability attaching to a member
who tenders negligent advice, the
scope of this possibility is
uncertain. In nearly all cases
advice given to clients will be
given by the member not in a
personal capacity but on behalf
of and as an agent of the LLP, and
there is an obvious argument for
Mixed up
down under
I am compelled to correct your
piece about the doing away with
the term “solicitor” in Australia
(November Hearsay column).Your
article incorrectly refers to the
Attorney General as Rob Hullis.
You are in fact talking about the
Attorney General of Victoria, Mr
Rob Hulls and his plans relate only
to Victorian jurisdiction, and would
not affect national law. For
clarification, the Federal Attorney
General is Philip Ruddock, who
hails from a different branch of
the political gum tree and I'd be
willing to bet money that he
would be against any form of
change, to the traditional term
solicitor, or otherwise.
Yours, An Affronted Aussie
12 :
defeating any claim of personal
liability especially if the terms of
the LLP’s client engagement letter
have made it clear that the
client’s professional relationship is
with the LLP and not with any
members in their personal
capacity.The engagement letter
could even go further and
exclude members’ personal
liability (subject of course to the
statutory rules on reasonableness
etc). In practice, whether or not
an individual member actually
incurs personal liability will
ultimately boil down to the
circumstances surrounding the
nature of the advice given and
the precise relationship between
the negligent member and the
client.
The second principle, which
unlike the first one is quite clear,
concerns that of joint and several
liability.The concept of joint and
several liability in relation to a
claim for the professional
negligence of a partner in an
ordinary partnership has no
application in relation to the
members of an LLP. In other
words, a client who has a claim
on account of being given
negligent advice will have a claim
against the LLP (as a separate
entity) as being the party
responsible for tendering the
negligent advice. A good night’s
sleep can thus be had (at the
very least by those members of
the LLP who were not parties to
the giving of the negligent advice)
in the knowledge that the
personal assets of the members,
beyond their respective interests
in the LLP, are secure from the
prospect of any claim ever being
made on a joint and several basis.
The position of course is the
converse from the liability that
can arise and be imposed on
partners in the case of an
ordinary partnership.
Stewart Duncan
Davidson Chalmers, Edinburgh
Charging SDLT work
Having read the letter from
David Adie in the November
Journal, I have to add my total
support to his stance.The
substitution of a six page form
for an extremely simple existing
procedure without a
compensatory payment to the
solicitor having to complete
same is intolerable given the
constant pressure to lower fees.
This firm would support a
general move by the profession
to charge an additional sum of
£75 to £100 for this service.
The SDLT Land Transaction
Return form has been drafted
by the Inland Revenue in such a
way as to preclude any sort of
automated completion of the
form by integration into a Word
document. We are advised by
our software programmer that
the matter could be quite simply
achieved were there not the
insistence upon the use of thee
Unique Identifying Number on
each form and were the layout
more “completion friendly”. We
would suggest that the Law
Society might wish to take up
the matter to assist the large
majority of small firms which do
not have case management
programmes running their
conveyancing business.
Mary McQueen
Mary R McQueen & Co,
Edinburgh
Defending
defenders
Regarding Alistair Bonnington’s
column in the October Journal, I
was disappointed to read that he
considers that a proportion of
criminal lawyers delay criminal
proceedings with a view to
gaining greater fees. Further, those
of us not so engaged are
condoning this behaviour by
refusing to admit it exists. Alistair
would no doubt say that he is
expressing a personal opinion and
is entitled to do so. I agree.
However it would surely be
better if the opinion was an
informed one.
The following may assist him for
future articles:
(a) Fixed fees in summary
criminal cases provide no financial
incentive to delay matters.
(b) In solemn cases the Crown
manage to delay proceedings
fairly effectively without any
assistance from the defence.
(c) High Court cases are far
more influenced by counsel’s
diary and the apparent lethargy of
Crown witnesses than they are by
the actings of the defence agents.
Delay has now become such an
inherent part of the criminal
justice system that it is not clear
how defence agents can do more
to expedite matters. One must
bear in mind that, heaven forbid,
the clients may actually have a
defence to the charges against
them.
Grazia C Robertson
Defence Solicitor, Glasgow
Legal aid what next?
I note a “strategic review” of
legal aid is to be conducted by
the Scottish Executive over the
next six months.
The last couple of reviews left
us with time sheets and fixed
fees. What will they think up
this time?
Steven R Quither
Steven Quither & Co, Wishaw
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hearsay
We’ll take the
high road
It’s been 400 years since the Union
of the Crowns and three centuries
since the Union of Parliaments.
Now it looks as if the government
in Westminster is hell-bent on the
Union of the Law either through
the back door or even via the
kitchen window. Plans for the newfangled Supreme Court (“are you,
or have you ever been, a backing
singer for Diana Ross?”) to replace
the appeal court function of the
House of Lords have been branded
as possibly unconstitutional by the
Faculty of Advocates since any
court with jurisdiction in Scotland
cannot be part of the court system
in England and Wales.
This braveheart uprising against
English hegemony has inspired
Hearsay to song. Altogether now:
“And stood against them, the Lord
High Chancellor, and sent him
homeward, tae think again.”
A grand idea
Hearsay nearly skidded off the road when it
heard the Executive’s plans to send careless
drivers back to driving school instead of fining
them or confiscating their licences.The National
Driver Improvement Scheme has already been
tested in a pilot scheme, or should that be
kamikaze scheme, and will be self-financing.
But Hearsay has a better idea that will allow
drivers to retain their mobility and keep the
roads safe. All offenders should be sentenced to
drive a Sinclair C5 for six months.Thus the only
damage will be injured pride.
You’re not singing anymore
for the Old Firm.
Hearsay notes with interest that
the wearing of Rangers and Celtic
strips in the workplace could be
banned from this month on the
grounds that they could fall foul of
the new legislation which bans
religious discrimination in the
workplace.
Leading employment law
specialists have pointed out that,
despite the connotations of
donning a hooped or royal blue
jersey, the wearing of a football
shirt in itself is not unlawful.
The diary, however, could not help
but observe wryly that they are
more likely to be signs of racism
given the paucity of Scots playing
But Hearsay reckons that perhaps
the wearing of Partick Thistle
jerseys should be banned on
grounds of insanity.
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hearsay
Bachelor
is legally
eligible
Okay, so everyone with an
LLB is a bachelor of law
but there is officially only
one eligible bachelor in the
legal profession and that is
Aamer Anwar of criminal
defence firm Beltrami &
Co.
Aamer entered Scotland
on Sunday’s 100 Most
Eligible list at the dizzy
height of number 29 and
revealed that he is under
pressure from his mum to
settle down. However the
busy lawyer is so busy that
he hasn’t even used his
gym membership. Seems
that the only courting that
Aamer has time for is
the High
Court
variety.
Mackinnons grin and bear it
We’ve had the Beast of
Bodmin, the Surrey Puma
and the Ayrshire Panther
but now all these semimythical animals have
been topped by the
Aberdeen Bruin which
was sighted around the
city centre on the 7th of
November.
Investigations by
Hearsay’s own X-Files
team have revealed that
the monster is none
other than Pudsey the
Bear, a known associate
of Mackinnons solicitors.
and did a tour around
several nurseries, some
oil companies and
several wards at
Aberdeen Children’s
Hospital.
As part of this year’s
Children In Need
fundraising activities
Mackinnons solicitors
joined up with Pudsey
“It was a wonderful day”
said Pat Gray, Private
Client Partner, “as well as
raising money for
Mackinnons’ Children In
Bang to rights
Being
legally
blonde
won’t get
you into
the most
eligible list
14 :
What is it with prisoners?
First they want an end to
that venerable tradition of
slopping out and now two of
them are seeking the right
to vote.The incarcerated
suffragettes are being
represented by Tony Kelly, of
Coatbridge law firm Taylor &
Kelly, in a case before the
Court of Session. Mr Kelly
will be arguing that barring
from the electoral roll
violates their human rights.
Hearsay can only conclude
that inmates have become
politicised due to the high
number of Tory MPs that
have been enjoying Her
Majesty’s Pleasure recently.
Need fundraising
campaign, we brought a
smile to so many young
faces. The children
particularly in the wards
of the Aberdeen
Children’s Hospital were
so appreciative. It was a
pleasure – and indeed a
real honour – to be
involved”.
In the Brownies
Mysterious organisations are operating
at the heart of the Scottish legal
establishment. Linda Urquhart, senior
partner of Edinburgh law firm Morton
Fraser, has been identified as a unit
helper for her local cell of the
Brownies, reporting to an
organisational mastermind known only
by the codename Brown Owl.
Hearsay’s undercover team will make
more shocking revelations once it
breaks a secret code referring to
pixies, elves and sprites.
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Page 15
But is it really art?
The legendary Andy Warhol,
guru of pop art, became
synonymous with the idea of the
repeated image as his screenprints of celebrities from Marilyn
Monroe to Elvis testify. He has
that the G2 advertisement in last
month’s issue repeated the same
advert for a Glasgow-based
conveyancing lawyer 20 times.
obviously had a major influence
on the designers who produce
advertising copy for G2, the fastgrowing legal recruitment
consultancy. Eagle-eyed readers
of the Journal will have noticed
G2 wish to apologise to all
readers for their designer’s
oversight in sending a template
instead of final copy. Normal
service has been resumed this
IN AND OUT THE OFFICE:
How do you get to work?
Drive to the City Centre and
then a short power walk to the
office.
What time do you arrive?
Around 8 depending on how
much power has gone into the
walk.
How does your day begin?
Straight to the water cooler for
the first fix of the day.
What does your work mainly
consist of?
Property advice. Due to the
demand this year for residential
property, particularly in the hot
spots of Edinburgh and Glasgow,
What book are you reading?
“How to Live” by Rita Konig.
What was the last film you
saw?
The Italian Job.
Which newspapers/magazines
do you read?
The Scotsman, Independent,
Harpers & Queen and Interiors.
Where are you going on
the need for clear advice and
guidance on the markets has
never been greater. Much of my
time is taken up with tracking
the markets to be able to
provide such a service for clients.
How much of your work is
done using IT?
A lot. As our IT Department is
continually involved in the
development of legal information
systems, we are always looking
to use technology for the benefit
of our clients, which does mean
that I am constantly working
with the Internet and email to
deliver and enhance the service
to clients.
How much of your day is
spent on chargeable work?
My time is fairly evenly divided
holiday?
The roof top hot tub at One
No plans yet but most likely
somewhere warm and sunny,
with good food and wine and
within striking distance of a
European City for culture and
shopping.
Spa (see above) followed by
Where would you go on a
day off?
What would you do if you
The roof top hot tub at One
Spa looking down on
Edinburgh’s Financial District.
Interior designer.
What’s your idea of a good
night out?
But don’t throw out last month’s
advert, which Hearsay prefers to
think of as situationist art– it
could be worth as much as
Warhol memorabilia in 20 years
and even win the Turner Prize.
Susan Mendelssohn
WORKLIFE
HOMELIFE
month with a tempting array of
litigation and corporate posts on
offer.
between delivering and
developing client services.
Where do you have lunch?
Being in Rutland Square, I’m very
fortunate to be in Edinburgh’s
gastronomic epicentre. Lunch
can range from a sandwich at
Pret a Manger to a client lunch
at Santini or Rogue.
What’s the most enjoyable
thing about being a lawyer?
Clients.
What is the most frustrating?
Clients.
What time do you leave?
This varies; however I particularly
enjoy catching up with
colleagues and the day’s events
once the switchboard has closed.
good food and wine…
And a relaxing night in?
Good food and wine followed by
the hot tub at home!
weren’t a solicitor?
Does worry about your work
ever keep you awake?
Never. Why spoil a good sleep!
Susan Mendelssohn is a residential property associate with Russel+Aitken
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Page 17
FINANCE
Solicitors’ financial centres are the latest example of the profession devising
new ways to exploit changing market conditions. PETER NICHOLSON
talked to the people who want to make the idea work in Scotland
MONEY
MATTERS
The last few years have not been easy
times for solicitors advising in financial
services. Reeling from the double blow of
sharply reduced remuneration – typically
down by around 30% – due to market
turmoil, and a greatly increased regulatory
burden since the Financial Services
Authority assumed jurisdiction in
December 2001, many smaller financial
services units have closed down. Solicitors
not authorised by the FSA are now
confined to providing advice which is
generic and integral to their legal work, in
terms of the exemption provided by Part
XX of the Financial Services and Markets
Act 2000. In marked contrast to the
situation which prevailed under Law
Society regulation, solicitors will commit a
criminal offence if they step outside this
exemption.
Ironically, this regulatory discouragement
has coincided with a need for greater
involvement in matters such as pensions
and divorce, equity release, long term care
and trust investment. Solicitors in England
have been censured by the courts on a
number of occasions for failure to take
account of the financial dimension to their
legal work.
Faced with this dilemma, a pioneering
movement has developed to provide a
network of financial advisory centres, run
by solicitors but detached from solicitors’
firms, the first Scottish examples of which
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Page 18
FINANCE
are about to open their
doors.
The IFAs outside
the profession
tend to prey on
the profession.
They are looking
speculatively for
clients to whom
they can sell
whatever might
be required – or
may not be
required
Ian Muirhead, Solicitors for
Independent Financial
Advice Ltd
Contact sifa@sifa.co.uk or
telephone: 01372 721172
Behind the movement is
Ian Muirhead, formerly a
practising English solicitor.
After his specialism in
financial services attracted
referrals from other firms,
Muirhead left his
partnership to set up his
own company, Solicitors
for Independent Financial
Advice Ltd (SIFA), which
he describes as “the affinity
group and trade
association for solicitor
financial advisers”.
Currently representing 170
law firms, one third of
them Scottish, SIFA’s
membership now stretches
from Shetland to
Penzance.
Without FSA
authorisation, solicitors are
obliged to refer financial
services business to
authorised third parties
such as independent
financial advisers (IFAs). If
remuneration is received in
return, the FSA requires
that that remuneration
should be rendered to the
client, and if the solicitor
wants to keep any of it,
that must be justified by
reference to the work
done. Moreover, according
to Muirhead, “The IFAs
outside the profession
tend to prey on the
profession.They are
looking speculatively for
clients to whom they can
sell whatever might be
required – or may not be
required.The solicitors are
coming from a different
angle, with specific types of
legal business that give rise
to financial advice …. It’s a
specific requirement in
order to assist solicitors
working in these areas that
you need to understand
where they’re coming
from.” Nor, he points out,
can referring solicitors
control the quality of the
advice given to their
clients.
Hiving off broadens its
appeal
To meet this need the
concept of the solicitors’
financial centre was born.
SIFA assists firms to hive
off their financial services
departments into separate
units, which then, under
licence from SIFA’s sister
company Solicitors
Financial Centres Ltd,
adopt the common brand
name Solicitors Financial
Centre and undertake only
financial services work.The
first one opened in
Teesside two years ago;
now there are five in
different parts of England.
Subject to final FSA
approval, hoped for this
month, January 2004 will
see the first three centres
in Scotland open for
business.
SIFA is “particularly keen
to pull in firms where we
can do a bit of marriage
broking to stop them
going out of business”, as
Muirhead puts it. “So the
one adviser firms, if there
are two or three of those
in a particular area, put
their heads together, join
forces, set up a joint centre
and then everyone
benefits. And the
investment that they’ve
made in the past in
developing that expertise
isn’t wasted – they can
hang onto it, they can
derive the benefit from
selling it to a wider
audience within the
profession.”
However the principle of
hiving off is now
commending itself to a
growing number of
authorised firms, which are
concerned to ring-fence
their exposure to the FSA
to the partners directly
involved, and to reduce
authorisation costs by
forming a body that does
not hold client money.
Considerations of
professional indemnity
insurance and increased
capital adequacy
requirements (pending
changes will see this
determined by reference
to the turnover of the
whole firm) are likely to
accelerate this trend.
Each centre is run by a
limited company owned by
the originating firm, but
accepting referred business
from other firms within its
territory (as determined
by agreement with SIFA).
SIFA insists, in order to
demonstrate to referring
SFC PROFILE: THE DUMFRIES CENTRE
The Dumfries Solicitors’
Financial Centre is a true case
of collaboration between firms,
John Roddick & Son, who
practise in Annan and Langholm,
and the Dumfries and Newton
Stewart-based AB & A
Matthews, both currently FSA
authorised. Matthews’ financial
adviser will become full time
adviser to the new centre;
Roddicks’ partner and financial
adviser Alistair Beckett (who
has, perhaps uniquely, in addition
to the Advanced Financial
Planning Certificate,
18 :
qualifications as a chartered
certified accountant and as a
solicitor in both Scotland and
England and Wales) will work
initially as a second adviser but,
he hopes, in the longer term as
a supervisor/manager with the
centre taking on a full time
second adviser.
“There is a vast difference in
culture between professional
firms and advisers such as
insurance brokers”, Beckett
asserts.“We major in giving
advice, not in making sales.” For
him the SFC concept opens up
possibilities for giving proper
professional advice on an
ongoing basis rather than ad
hoc as in the past. Convinced
since the concept was in its
infancy of the merits of SFCs, he
was always aware, if he
attempted to pursue the idea as
a personal initiative, of a
suspicion among other
solicitors that their clients
would defect.When the chance
to be involved in the Dumfries
centre arose, Beckett was
delighted to be able to take it
forward.
The new centre, located in
Dumfries’s Crichton Business
Park, has so far attracted a
“solid reaction” from other
practices.“A number of
substantial local firms are
committed to referring
business, and we hope that
others can be persuaded once
we are up and running.”
For Beckett, the first year will
have been a success “if we are
busy and making money”. He
concludes:“We look forward to
doing business and building
relationships for future years.”
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4:31 pm
firms that their clients’
loyalty will not be
endangered, that the
centre is set up in
premises separate from
the office of the parent
firm. On the contrary, the
solicitor-client bond can
be strengthened as the
relationship moves from
the purely transactional to
a more continuing one. “If
the client is being kept in
the frame via the financial
services activity, the client
is being reminded
continually that he belongs
to that solicitor”, explains
Muirhead.
“Client money is another
example of the way in
which you can involve the
referring firm, because the
referring firm will hold
client money, and to the
extent that you are
pointing the client back to
the referring firm for the
purposes of client
accounts etc, that again is
reminding the client of the
relationship”.
When the centre has
given advice it will write to
the firm with a copy to
the client explaining what
it is arranging, and also
asking for comment and
whether the advice is
consistent with the
arrangements made on
the legal front – all of
which also serves to justify
to the FSA any fee the
referring firm receives.
Benefits to referring
firms
With these considerations
in mind, the centres
provide referring firms
with an audit trail of
client-facing material,
which explains the threeway relationship between
referring firm, client and
Page 19
centre, with the firm
providing initial
information and
maintaining a watching
brief on behalf of the
client. Referring firms are
also provided by SIFA with
free training in financial
services matters, which is
eligible for Law Society
CPD points.
The financial return to the
referring firm varies from
centre to centre. With
some, referring firms can
be involved as
shareholders from the
outset, or earn shares
relative to business
referred. Other centres
pay a proportion (SIFA
regards 20% as an
appropriate maximum) of
the client fee to the
referring firm; others again
some combination of the
two.
“The big reservation they
had when they set up, the
first ones, was that they
would open their doors,
say okay, send us your
clients, and no one would,
because they would
continue to see them as
competitors or because
they would be
disinterested or whatever.
But as it is the firms have
been flocking to send their
clients to them because
we’ve been able to put
over the story of the
needs, the justification, the
benefits of becoming
involved in what we like
to describe as being a
joint external resource”,
says Muirhead.
Goodbye to the shop
front
Superficially there are
close comparisons with
solicitors’ property
centres, but the latter
SFC PROFILE: THE GLASGOW CENTRE
Brendan Cameron of Peterkins’
Glasgow office is ploughing a lonelier
furrow.When Peterkins applied for
the SIFA Glasgow franchise, none of
the other 15 or so member firms in
the area sought to join in. But
Cameron remains convinced that it’s
a good idea. “Using the brand name
‘solicitor’ will be creating something
that will hopefully bring a bit more
respectability to a market that has
been pretty tainted by various
scandals”, he comments.
understand what they’re saying back
to me”, will take on the
management/compliance role.
“The SFC brand name is going to be
UK wide.We’ve got levels of support
throughout the organisation that we
wouldn’t have if we were stand alone
units.We can go to SIFA.We can also
be referred to other SFCs who may
have a person who has a particular
specialism, if we have say some
esoteric business that needs
specialist input.”
Like Alistair Beckett, Cameron will
count his first year a success if he
builds the relationships from which
future business will develop. “If we
get the relationships in place the
business will be there.” He tells of a
solicitor who mentioned sending a
client to a firm of accountants with a
cheque for £180,000. “I said do you
realise you’ve sent away a fee bigger
than your fee for the executry?
Obviously he trusted the
accountants but I’d like to think that
if he sent them to the SFC he’d end
up knowing more about the client’s
products and why; there might well
be legal business to be done as well
by way of tax planning and estate
planning.”
Peterkins, who occupy two units in a
six unit building, are turning their
premises into two separate offices.
Their senior financial services
adviser will become director of the
new business, working full time;
Cameron, who sat financial planning
exams “so I can speak to IFAs and
A growing network of centres will
be a marketing strength too. “Once
we get a few firms up and running
then by year 2 there’ll be scope to
look at the Scottish SFCs as being a
combine in marketing terms, to get
to the wider market, to get more
awareness.”
The big reservation they had when they set up, the
first ones, was that they would open their doors, say
okay, send us your clients, and no one would, because
they would continue to see them as competitors
provide what is basically a
marketing service to their
member firms, and
undertake business that is
in effect delegated by the
member firms, as opposed
to business that the
referring firm would be
unable to undertake
without special
authorisation.
Significantly also, while not
actually turning it away,
solicitors’ financial centres
discourage casual business
“off the street”. Centres
are likely to be located in
business parks rather than
high streets – with
consequent savings in
office costs. As Muirhead
comments: “The quality of
business coming off the
street is poor, and
solicitors exclusively have
the entrée to other
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Page 20
SFC PROFILE: THE CENTRAL SCOTLAND CENTRE
FINANCE
solicitors’ business, and
therefore it makes
absolute sense to
concentrate on that. It’s
fine if someone does
come in, but you’re not
actually applying yourself
to deriving clientele from
other sources.You are
existing purely to serve
the profession.”
SIFA enjoys good relations
with the Law Society of
Scotland, which unlike its
English and Welsh
counterpart does not
classify SFCs as law firms.
This makes things simpler
on the regulatory side,
since the centre has only
to comply with one set of
conditions (the FSA’s) on
PI insurance. While many
IFAs have experienced
increasing difficulty
obtaining PI cover – 40%
currently do not have it at
all, says Muirhead – SIFA
has negotiated three
schemes which are
available to SFCs on
favourable terms as soon
as they have FSA approval.
And because it is the
referring firm that
continues to hold the
client’s money, the
stringent FSA regime for
those providing client
money services, more
relevant to high street
banks, does not apply.
Making it all happen
Taking the lead in
establishing a centre is not
for the faint hearted, and
SIFA will look closely at a
candidate firm’s credentials.
“We need to be confident
The franchise granted to Solicitors’
Financial Centre Central Scotland
Ltd covers a roughly wedge-shaped
area taking in Broxburn, Linlithgow,
Falkirk, Denny and Stirling among
other towns. Located on the
Callendar Business Park in Falkirk,
the centre is founded on the
financial services business of
Grangemouth-based RGM, whose
partner Gordon Marshall has been
pursuing the SFC idea since
attending a SIFA seminar in 2001.
For Marshall, learning of the SFC
scheme was the “missing piece of the
jigsaw” as he pondered the future
under FSA regulation.With three
IFAs working for the firm and a large
part of the firm’s business deriving
from financial services, his firm was
well placed to bid for a franchise.
Aiming to attract referrals from the
smaller, two or three partner firms
who don’t have the facilities to
support the compliance
requirements at present, his
approach is to offer an initial
meeting with an IFA in the referring
solicitor’s office, or even the client’s
Taking the lead in establishing a centre is not
for the faint hearted, and SIFA will look closely
at a candidate firm’s credentials
20 :
home if asked, as an alternative to
the centre’s office.
“Thereafter the solicitor will
probably not want to get involved,
will just do the letters and take his
cut when it’s finished. I envisage that
the client will probably contact the
IFA direct. Maybe not. As long as
they keep the client.”
Those referring sufficient business
will be offered shares as well as their
percentage of the fee. And there will
be a further benefit if members of
the client’s family then use the
centre: “If we get financial business
from them the referring firm will still
get a payment. So we’re emphasising
that that is strongly for the benefit
of the referring firms who at this
moment in time are probably just
letting money go out the door.”
For Marshall, the compliance issue is
both the main worry and the main
benefit to be had under the wing of
SFC. “That’s why they’re so good –
they look after it, do their visit once
a year, are always on call, checking on
your compliance records and giving
training.”
•Journal_12-03
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4:31 pm
that the person who’s
running it has got the
necessary get up and go
to make it happen”,
Muirhead emphasises. “This
is a serious business and
for a firm that’s setting it
up you need to be full
time hands on. But any
firm is welcome to refer
clients in, so there’s no
exclusivity there at all.”
Apart from the premises,
the necessary investment
comes in at around
£30,000. One third is to
satisfy the FSA’s capital
adequacy rule, but this can
take the form of office
equipment or other
realisable assets which
would be required anyway.
SIFA itself takes £10,000,
of which £6,500 provides
software, £1,000 goes on
Page 21
help with the FSA
application (independent
assistance for this alone
could cost £10,000), and
£2,500 covers general
support in setting up.The
final £10,000 buys PI cover,
though this comes down
to about £6,000 for what
SIFA considers the “entry
level” annual financial
services turnover of
£200,000.
The complexity of the FSA
application is one reason
why more centres have
not already come into
being. “The preparation of
the application takes some
months”, says Muirhead.
“The application itself is
about three inches deep –
it is enormous, and they
want you to go explicitly
into your business plans,
why you’re setting up, what
your USP [unique selling
proposition] is, who your
personnel are.You need to
do in depth analysis of the
expertise, qualifications,
past experience of all
these people.You have to
do budgets which have to
be approved by
accountants.The whole
thing is very heavy duty,
and so we liaise closely
with the potential SFC in
setting up the paperwork,
and we make a point of
ensuring that we are
satisfied before the
application goes in.
Because if it goes in and
the FSA throws it back,
then big delays ensue. So if
we’re happy, then bang it
goes in, and it takes a
month as opposed to six
or eight months that it can
take if you’re doing it from
scratch.”
Once up and running, the
centre is in the hands of its
full time financial advisers,
of which SIFA say there
should be at least two. In
some cases the solicitor
wants to give up legal
work and dedicate
themselves to financial
services work; in others
there will be solicitor
directors spending part of
their time at the centre.
SIFA, while describing itself
as a franchisor, does not
have an outwardly visible
presence but provides
support services, charging
a royalty based on the
business done. Its
compliance director Ian
Cockerill spends three
days every year with each
centre, going through their
compliance records and
giving training.
The two years since the
FSA took over have hardly
been auspicious times for
financial services providers.
But each solicitors’ financial
centre that has opened so
far has survived, and Ian
Muirhead is looking to the
future with increasing
confidence. “The last two
or three years have not
been a time when we felt
it appropriate to push
people in this direction
with the market, with
everyone sort of holding
on. But now we’re coming
out of that and we’re able
to apply a little more
accelerator.”
: 21
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REGULATION
Clear and present
DANGER
The future of the legal profession in Scotland is subject
more than ever to wider UK and international pressures.
DOUGLAS MILL, Chief Executive of the Law Society of
Scotland, explains the background to the Clementi review
and the essential underlying issues facing the profession
The papers and the
profession have been full
of chat about MDPs,
MNPs, regulation,
deregulation, Clementi,
Monti and competition.
Some of the reporting has
confused the borders
between jurisdictions and
some has made it clear, but
the issues are certainly
raising debate and rightly
so as they could lead to
real change in our
profession and our work.
The Society is alert to
these developments,
engaging in conversations,
22 :
meetings and debates.
Many in the profession
have asked me questions
about these issues which I
have outlined in this
article, along with some
answers about what the
Society is doing and some
of my views on the issues
faced by solicitors in
Scotland.
What is DECAF?
Life is full of acronyms
these days – DECAF
stands for the Department
of Constitutional Affairs,
now headed by Lord
Falconer.This is the
successor Department to
the Lord Chancellor’s
Department in England
and Wales. DECAF issued
a Consultation Response
in July 2003 on
competition and regulation
in the legal services
market, which in turn
followed a report “In The
Public Interest”.This is the
latest stage in a process
which is gaining
momentum and is
designed to look at a
range of issues including
conveyancing, and probate
in the English market
place, legal professional
privilege and the status of
Queen’s Counsel.
More relevant from the
Scottish perspective, and
of deeper constitutional
concern south of the
border, is their examination
of the regulatory
framework for legal
services in England and
Wales, multi-disciplinary
practices and whether
employed solicitors should
be entitled to give advice
direct to the public.
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Page 23
FUTURE OF THE PROFESSION
THE KEY PLAYERS
Clementi: David Clementi, former Deputy
Governor of the Bank of England, charged by the
Government with carrying out a review of the
regulation of the legal profession in England and
Wales
DECAF: Department for Constitutional Affairs,
successor to the Lord Chancellor’s Department
and instigator of the Clementi review
LSEW: The Law Society of England and Wales
MDPs: Multi-disciplinary practices, supported by
Why is this relevant to
Scottish solicitors?
Superficially it is not.The
report concerns England
and Wales only. David
Clementi, who has been
commissioned by the
Government to lead the
Review Group, has
acknowledged that fact.
There is no doubt
however that changes in
England and Wales leading
to the creation of a super
regulator or allowing what
is being called “Tesco Law”
are likely to have knock-on
impacts in Scotland. As
legal practice becomes
increasingly globalised, any
changes in a jurisdiction as
considerable as England
and Wales, are very likely
to impact in Northern
Ireland, Scotland and even
Ireland. In addition, the
Scottish Executive Justice
Department has
acknowledged that there is
considerable “read-across”
in these proposals. So in
fact it is of direct relevance
to all Scottish solicitors.
Who is David Clementi?
David Clementi has a
background in banking and
insurance. He had a
leading role at Kleinwort
Benson in the UK
privatisation programme
for a number of years,
including advising HM
Government on
privatisation of British
Telecom in 1984, the first
global equity issue and
privatisation in 1991 of the
electricity industry. After
moving to the Bank of
England as Deputy
Governor for a period of
five years from September
1997, he joined the
Monetary Policy
Committee and was
heavily involved in the
Bank’s work to help the
City prepare for the single
currency. In 2002 he was
appointed chairman of
Prudential plc. An Oxford
graduate, a chartered
accountant and an MBA
graduate from Harvard
Business School, he is a
member of the
Appointments Committee
of the Press Complaints
Commission and an
Honorary Fellow of
Lincoln College, Oxford.
Should a lawyer have
been appointed?
The Government wished
to appoint someone
independent and objective
as far as the legal
profession is concerned.
Having met David
Clementi in early
November with the
President, Joe Platt, and the
Vice-President, Duncan
Murray, I believe that he
the LSEW but opposed by the other UK and Irish
Law Societies
MNPs: Multi-national practices
Monti: Mario Monti, the EU Competition
Commissioner
Tesco Law: Popular name for the giving of advice
direct to the public by solicitors employed by
non-solicitor proprietors
has a very good grasp of
the legal issues involved
and has shown an openminded and methodical
approach. Although there
is clear Government
direction and pressure I
am confident that Mr
Clementi and his review
team (which includes
Sheila Spicer and Sanjeev
Ghosh, two senior people
from the Lord Chancellor’s
Department and Treasury),
will do justice to their
brief. I can assure
members that the
differences in the Scottish
marketplace and our
concerns about Scottish
solutions to English issues
were made very clear.
What is the wider background?
For some period of time
we have had a different
view from our English
counterparts on the
subject of multi-disciplinary
practice. It is the Law
Society of Scotland’s
established policy that
multi-disciplinary practice is
inconsistent with our core
values of confidentiality
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Page 24
REGULATION
and independence.This
policy has been affirmed at
AGMs over the last few
years.There was a period
when we seemed to be
swimming against a very
strong international tide.
Since the Enron fiasco, the
Nova judgment and other
related developments, it
would appear that MDPs
have gone off the boil a bit
but questions remain to be
answered on the future of
practice development and
professional practice.
Regulation is the key. In
our response to the Law
Society of England and
Wales’s proposals, we
asked how MDPs could be
regulated in the public
interest but we were
never shown a model.
Since then the debate has
broadened further but has
to be seen in the context
of developments in a
global – GATT, European
(Mario Monti) and UK
(Office of Fair Trading)
perspective. We are in an
era where legal services
are being traded as a
commodity much in the
same way as bananas and
fish quotas.
The crux of the
DECAF/Clementi process
is a constitutional one,
which focuses in on
Holyrood has control).
What are the real issues?
The essential questions are
such as “What makes us a
profession?” “What is a
lawyer?” “Will the legal
status of solicitor remain in
five or 10 years?” “What
future is there for the legal
profession in Scotland as a
self-determining body of
practitioners?” “What will
the impact be of allowing
non-solicitor proprietors
to employ solicitors to give
advice direct to the public
in Scotland?” “Are there
access to justice issues?”
“Are there rural
accessibility issues?” “How
‘regulatable’ is the nonsolicitor proprietor?”
Particularly in this era
where the profession is
concerned about money
laundering and the
proceeds of crime, it is
difficult to conceive of a
proper regulatory model
which would ensure that
today’s professional and
regulatory standards which
operate in the interests of
both the profession and
the public can remain.
What is Tesco Law?
Ironically it seems that
Tesco are not the main
movers behind this
Indeed, we are told that at
least one of the Magic
Circle firms would look to
immediately float on the
Stock Exchange.To
understand this, Scottish
solicitors have to
appreciate one or two
English issues which are
not entirely replicated in
Scotland.
Such as?
The size and power of
their large firms – the City
of London has firms
employing thousands of
lawyers. I am told that one
particular firm pays
approximately £4 million
per year to Chancery Lane
for regulation and that
some of these firms have
fee income in excess of £1
billion per year. Collectively,
and bearing in mind the
worldwide nature of many
of the big English firms,
they bring in substantial
foreign earnings for the UK
economy.This makes them
fully global players – to an
extent that not even
American firms can match.
They are to be
congratulated and
encouraged in this, and
indeed one of the
problems which the Law
Wales has, is trying to
Since the Enron fiasco, the Nova judgment and
other related developments, it would appear
that MDPs have gone off the boil a bit but questions remain to be answered on the future of
practice development and professional practice
whether the issues centre
around competition law (in
which case Westminster
rules) or whether or not
the legal system and justice
are different (in which case
24 :
pressure on the Law
Wales.The RAC are very
involved, as are the big
English firms, which are
keen to go beyond
solicitor proprietorship.
regulate everything from
the sole practitioner to the
4,000 lawyer firm in the
City. All firms
understandably have their
business interests at heart.
The interests of large firms
The Society was under the
Scottish Parliament microscope a year or so ago. The
Justice 1 Committee conducted
an inquiry into the regulation
of the legal profession in
Scotland, and … they were
satisfied that the model still
operates in the best interests
of the public and the
profession.
can be light years away
from the interests of the
high street firm in, say,
Forfar.They are in a
position where they can
press the Government for
change in the paradigm of
solicitor proprietorship.
There is distance between
the average high street
practice in England and
Wales and Chancery Lane
which is not replicated in
Scotland. Scotland is a
smaller jurisdiction and
benefits from a closeness
with high street practice
and a confidence in its
future which is not found
down south. Much of the
policy of the Law Society
of England and Wales is
predicated on what I see
as a pessimistic view of the
future of private practice
outwith the cities which I
do not share.
It is for those reasons that
the Law Society of England
and Wales is positively
promoting the
development of a move
towards non-solicitor
proprietorship of legal
firms.The Law Society of
Scotland believes that this
would conflict with our
main core value of
independence and has
been constant in its
demands to be shown the
regulatory model which
would protect the public –
and the profession – in the
event of problems in these
firms.
What about regulation?
The scale, nature and
extent of the problems
down south need to be
put into perspective. In
comparing the Law Society
of Scotland with the Law
Wales you are not
•Journal_12-03
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Page 25
difficulty for the LSS, its
members and its clients is
that the FSA is a UK-wide
model and it may well be
that the Clementi review
seeks to impose that on
the Scottish profession.
Even if it does not go that
far there may be an
attempt to “sub-contract”
regulation of the
profession in Scotland to
the LSS – something which
I would personally oppose.
What about other
affected parties?
comparing like with like.
LSEW have approximately
110,000 members, almost
1,000 staff and a turnover
in the region of £80
million compared to
Scotland with
approximately 10,000
members, 123 staff and a
turnover in the region of
£4 million. LSEW’s record
in handling complaints over
the last 10 years has been
a matter of concern, not
only to their own
members, but also to the
Government and the
media. Although LSEW
have made recent
attempts to improve,
including an investment of
£21 million in client
relations, they have deepseated regulatory issues
which, again, I do not think
we share.
I think the Scottish record
on regulation over the last
10 years or so has been
exemplary.
Nothwithstanding very
considerable pressures
which we have these days,
which are a product of a
consumer society, we have
much to be proud of –
not just with complaints
handling but in relation to
claims and Guarantee
Fund matters and we are
constantly working to gain
real improvements in what
we do.
My views are shared by
many with a direct interest
in regulation.This is not
just my opinion.The
Society was under the
Scottish Parliament
microscope a year or so
ago.The Justice 1
Committee conducted an
inquiry into the regulation
of the legal profession in
Scotland, and whilst there
were many suggestions
coming out of that review
many of which we have
already taken forward, they
were satisfied that the
model still operates in the
best interests of the public
and the profession. In
addition to this, the
Council of the Law Society
of Scotland Act is already
making a difference now
that Council has delegated
some decision-making
powers to committees.
This gives us an increasing
velocity in our ability to
deal with complaints –
which I think has been the
missing part of the jigsaw.
The various differences
lead me to believe that the
LSEW is in a different ballpark to the Law Society of
Scotland in terms of
resisting what is likely to
be a move towards an
FSA-type regulator of legal
services down south.The
We have already spoken in
some detail to the Law
Society of Northern
Ireland and the Law
Society of Ireland in
relation to the
DECAF/Clementi review.
They share our concerns.
It is always said that if
London sneezes on
Monday, Belfast catches a
cold on Tuesday, Edinburgh
on Wednesday and Dublin
on Friday. Our Irish
colleagues, north and
south, share our views in
relation to the
fundamental importance of
core values and our
confidence in private
practice’s ability to deal
with the present and the
future. In addition to this
we have spoken to many
of the main figures in the
Scottish legal system such
as the Lord President, the
Advocate General, the
Justice Minister and the
Faculty. It is important that
there is clear
understanding in the
Scottish legal system of the
considerable knock-on
implications of what is
happening in England and
Wales.
Most importantly this is a
matter for all solicitors in
Scotland.This is not
something esoteric.The
Society will lead the way
but the profession must
pull together on this one.
Having seen Mr Clementi
and established our
credentials we will
continue to tell people
what we are doing and to
listen to the profession’s
views at faculties, which I
regard as one of the most
important parts of my
work for the profession. A
Society team will be
visiting Aberdeen,
Dumfries, Dundee,
Stranraer, East Fife,
Kirkcaldy and Glasgow in
February/March. Council
will be debating DECAF
issues at every meeting
between now and our
AGM and I expect that we
will be developing a
number of policy options
to be debated in
Edinburgh in May.
In the meantime, it would
help the Society in its
work to have any
comments from the
profession. Some may see
Tesco Law and
deregulation of the
profession as a benefit and
others may not. What is
certain is that the debate
which we are entering on
all the different issues I
have outlined is likely to
change the face of the
solicitors’ profession and it
is fundamental that the
best interests of the public
and the profession are put
to the forefront of any
change.
How will you be kept
informed?
I hope this will be the first
of a series of articles in the
Journal, which will cover a
deeper analysis of the
Tesco Law issues and
examine other regulatory
models. I will also report
on any policy issues
debated at Council and
the AGM and
developments as they
unfold.
: 25
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Page 26
PRO BONO
FOR LOVE OR
26 :
MONEY
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Page 27
Pro bono work is gaining a higher profile south of the border,
largely due to the influence of American firms. But Scots lawyers
still act individually and remain reluctant to talk up their good
deeds, as ROGER MACKENZIE discovered
While once it may have been the preserve
of the well-heeled, philanthropic local
solicitor, anxious to salve his conscience by
giving something back to the community,
now pro bono work is, if this is not a
contradiction in terms, very much big
business.
The stealthy Americanisation of the UK’s
biggest firms has ensured that the US legal
culture, where pro bono work is a core
professional value, has become part of
their philosophy and, if you ever read The
Lawyer magazine, you’ll know they’re not
shy in shouting about their big-hearted
deeds.
So where does that leave pro bono legal
services in Scotland? Here, an oldfashioned view still seems to prevail. As
one solicitor, whose firm does a substantial
amount of pro bono work, told me, it’s not
really in keeping with the essence of pro
bono work if you talk about it, because
you are left open to the charge that it’s
actually a self-serving marketing ploy.The
dignity of pro bono work is in doing it
quietly, without fuss.
And that same solicitor also highlighted
another reason for not shouting about it –
that the Executive will seize on it and use
it as a sop to justify the continued
underfunding of the civil legal aid system.
In his October column, Society President
Joe Platt highlighted the ominous, and illfounded words of the Depute
Competition Commissioner, who
suggested pro bono work should be
mandatory for young solicitors.The fear is
that such a view could gain credibility.
So while all the anecdotal evidence
suggests that most solicitors undertake
some pro bono work, those prepared to
discuss it are scarce.
As founder of Will Aid, probably now the
best known route for most solicitors to
engage in pro bono work, Graeme Pagan
of Hosack & Sutherland in Oban, doesn’t
necessarily subscribe to the notion that
publicising pro bono work defeats the
essence of it.
“When we were asked to help out, we
said we were happy to help in getting it off
the ground but we said if they got lottery
funding we would expect them to make
payment of fees as they can from funds.
“I cannot accept that any voluntary work
which gets publicity is contrary to the
good principles of pro bono. For good or
bad the success of many things depends
very much on publicity and it was
obviously absolutely essential for Will Aid.
Many people who may want to go around
keeping quiet about their good deeds
could be a great inspiration to other
people if they shared what they are doing.”
Graeme Pagan rejects the suggestion from
some solicitors that if they do some work
for free that opens the door to them
having to do all sorts of things for nothing.
A more cynical line of argument used
against publicising pro bono work is that it
could open up the floodgates to endless
clients putting themselves forward as
deserving cases. It’s a concern Adrian Bell
of Morton Fraser acknowledges.While his
firm has done a lot of pro bono work over
the last few years for charities, sometimes
in the form of tailored rates reflecting
what they can afford, many charities are
serious operators and worthwhile clients,
all trying to get maximum value from
limited funds.
“The problem with publicising these things
is that I have a lot of charity clients and we
don’t want them all looking for free legal
services.Where people can pay they
should, and we wouldn’t lightly do work
for them on a pro bono basis if they could
realistically pay”, says Bell.
Through Scottish Business in the
Community, a fledgling professional firms
group, the firm were contacted to help out
on the Stepford Road Sports Complex, a
project that gave Greater Easterhouse its
first ever sports complex and grass
football pitches.
“To date they haven’t had to make any
funding for legal fees, and we have no strict
lines as to how much we will do,” said Bell.
“Of course you have to be fairly strict and
I definitely adopt the principle that if I am
working for nothing I will decide how and
when.”
Nor can he envisage a government
committed to making pro bono work
mandatory.
“Even the way things are going I would be
absolutely amazed if the Scottish
Government tried to force solicitors, or
anybody else for that matter, to devote a
certain amount of their time to working
for nothing. In any event I do not see why
a solicitor should be treated any differently
from any other section of the community.
Many others are better off than us and yet
there are no expectations on them to give
up more of their time to work for nothing
in order to reduce what they actually
earn.”
Not just a gimmick
In a cynical age, scepticism will always
greet good deeds trumpeted by large firms
whose staff includes marketing and public
relations advisers. All too often it has all
the subtlety of the latest down-on-theirluck celebrity reinventing themselves as
: 27
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PRO BONO
a UN Goodwill Ambassador.
“good corporate citizens”.
At DLA they don’t try and hide
the benefits that can be gleaned
from having what they call a policy
of “corporate social responsibility”,
but insist that if it was a mere
marketing gimmick, they could
come up with something more
sophisticated, and would be
unlikely to sustain it for as long as
they have.
“Clearly it does give a corporate
edge, it says we are different, we
believe in civic duties as part of
our business behaviour”, said
Radford. “But we’re definitely not
promoting it as a marketing
exercise. We hope to inspire other
people into doing it. We are very
proud of it and our clients now
have an expectation that it’s
something we do.”
Development Officer Elaine
Radford explained that the firm’s
pro bono work has been
rebranded as an activity
embedded in their business in
terms of their commitment to be
In Scotland, there
has been no effort
either to establish
a protocol for pro
bono work or to
introduce a body
equivalent to the
Solicitors Pro Bono
Group in England
Adrian Bell also refutes any
suggestions of pro bono activities
being marketing by stealth.
“No-one is less marketing
orientated than me; you do it to
give something back. Being a
lawyer is a hard business and
lawyers ought to make a
reasonable living, but if you can’t
find time to help that’s a poor
show.”
Organic or cultivated
Yet in Scotland, there has been no
effort either to establish a
protocol for pro bono work or to
introduce a body equivalent to the
Solicitors Pro Bono Group in
England, which acts as a sort of
clearing house putting deserving
causes in touch with willing firms
or organisations.
The notion of the In-House
Lawyers Group fulfilling this role
was mooted at their conference
last month, but for the present pro
bono work seems set to be
largely conducted on an ad hoc
basis, with individual firms left to
devise their own policies.
Morton Fraser are trying to
streamline their system, to develop
an instruction sheet that sets out
and defines the extent to which
they can help, which might include
setting out an initial limit so that
recipient charities realise it’s not
an open ended commitment.
So too at DLA, where
Elaine Radford says
their pro bono efforts
have evolved in a
“fairly organic way”
28 :
that’s allowed the work to be
done with “freedom and creativity
rather than saying this is how it
will be delivered”.
“Initially when doing pro bono
work, we tended to put a limit on
it but found as time went by that
was not the best way. In limiting it,
you could sometimes be pulling
away at the moment when you
were close to resolving the issue
so we now tend to give people
jobs to complete rather than a
limited amount of time.”
In Glasgow the firm has devoted
its pro bono efforts towards the
Prince’s Trust, providing legal
advice to young businesses on
issues such as contracts and
intellectual property. In fact, it’s a
mutually beneficial arrangement in
that trainees and young solicitors
are able to acquire experience of
handling their own clients.
DLA’s Glasgow office is also
undertaking a survey targeting
businesses and asking about their
involvement in pro bono work –
and, if they’re not involved, what
holds them back, whether
Scottish Business
in the Community
In today’s global economy,
companies are increasingly
expected to be transparent in
their activities and to
demonstrate responsible
business practice – or, in current
jargon, corporate social
responsibility.
SBC helps companies to
make their impact on society as
positive and productive as
possible, whilst gaining tangible
business benefits.
SBC is a not-for-profit
company with charitable status,
and is led by its member
companies. See
www.sbcscot.com for further
details.
Solicitors Pro Bono Group
Operating in England and
resources, budget or that they
don’t know how to go about it.
If it shows that there are missed
opportunities with firms willing to
undertake pro bono work unable
to find the right community
partner, it might strengthen the
case for the formation of an
organisation to provide that link.
Graeme Pagan is doubtful about
the merits of that. “For my own
part, while there are a number of
things that I feel motivated to help
without wanting paid, that does
not mean that I would welcome
more people phoning me up
asking for free services, especially if
it was to help something I was not
particularly sympathetic about.
Surely we all have our own
different feelings and beliefs about
what causes are worth supporting
and what the priorities should be.”
Adrian Bell suggests some sort of
central body would help, matching
firms willing to do pro bono work
with worthy causes but with a
stipulation that there is a
commitment only to a certain
number of hours.
Wales, the Solicitors Pro Bono
Group
(www.probonogroup.org.uk) is
an independent charity whose
mission is to support, promote
and encourage a commitment
to pro bono.
The Group aims to fill the
void that has historically seen
pro bono work carried out in a
piecemeal and unstructured
basis, creating a more coordinated response in setting up
initiatives and developing and
facilitating new partnerships
between the profession and the
not-for-profit sector.
SPBG has also drafted a
protocol for solicitors
undertaking pro bono work
and could provide a model for
any future organisation that may
be established in Scotland.
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Page 29
SERVICE IN THE EU
With the enlargement of the European Union on 1 May
2004, the permutations for service of documents in
Member States will multiply. GEORGE JAMIESON shows
how to find the official guidance currently available, and
sets out the language required in each state or region
SETTING OFF
Abroad
I gave an outline of the Regulation
of the Council of the European
Union of 29 May 2000 on the
Service in the Member States of
Judicial and Extra Judicial
Documents in Civil and
Commercial Matters (“the
Regulation”) in my article in the
November 2000 Journal at pages
36 and 37.The Regulation (Council
Regulation (EC) No 1348/2000)
came into force on 31 May 2001. It
does not apply in respect of
Denmark. It is now time to update
my article.
Readers will recollect that the
Regulation establishes a system for
service* of judicial and extrajudicial
documents (“documents”) in
Member States (other than
Denmark) by means of
transmitting and receiving agencies
to be designated by the individual
Member States.The agencies
designated for Scotland do not
include sheriff officers, as originally
envisaged, but are messengers-atarms who are members of the
Society of Messengers-at-Arms
and Sheriff Officers, and solicitors
approved for that purpose by the
Law Society of Scotland.The
Scottish Ministers have been
designated as the central body for
the purposes of article 3 of the
Regulation. (See the European
Communities (Service of Judicial
and Extrajudicial Documents)
(Scotland) Regulations 2001 (SSI
2001/172), regs 3 and 4.)
Information maintained by the
European Commission
By virtue of articles 17(a) and 23
of the Regulation, the Commission
publishes in the Official Journal, and
regularly updates on its Justice and
Home Affairs website:
1. A Manual of Receiving Agencies;
2. A Glossary of Documents
Which May Be Served; and
3. Information communicated by
the Member States with respect to
the Regulation.
The Regulation itself is also found
at this website.To access the
website, go to
www.europa.eu.int/comm/
justice_home/index_en.htm, click
on “documentation centre”, then
“civil matters-judicial co-operation”
and then “documents-service”.
Alternatively one may use the link
provided on the National
Association of Belgian Sheriff
Officers website, referred to below.
Of the three information
documents maintained on the
Justice and Home Affairs website,
the Manual of Receiving Agencies
is the most extensive (963 pages in
its most recent version). It lists all
the receiving agencies in the
Member States.Transmitting
agencies are not included in the
Manual as these are contained in
the information document, number
3 in the above list.
The entries in the Manual (and
also in the Glossary) are given in
all 11 official languages of the EU.
The official languages at State level,
into which copies of documents
are to be translated prior to
service, are noted later in this
article.
If one wishes to look for
information in English in the
Manual and the Glossary, look for
“EN” in relation to each entry for
an individual state.
The Manual
For some states the entry is very
straightforward. For Belgium, for
example, the receiving agency is
the Chambre Nationale des
Huissiers de Justice/Nationale
Kamer van
Gerechtsedeurwaarders, translated
as “the National Association of
Bailiffs”, but perhaps more
accurately for a Scottish
practitioner, “the National
Association of Belgian Sheriff
Officers” (see below).
The German entry takes up what
seems like hundreds of pages, as
there is a separate receiving agency
for each locality in Germany.
Some states (e.g. Greece, Finland
and Sweden) follow the Belgian
example by having only one
receiving agency (in all three cases,
the Ministry of Justice), while other
states are similar to the German
model by having a detailed list of
receiving agencies for each locality
(e.g.The Netherlands and Spain).
The Glossary
This lists the various documents
which may be transmitted for
service under the Regulation.The
UK entry seems to have been
drafted almost exclusively with
regard to the terminology of
English law. With regard to
extrajudicial documents, some of
the entries are not very helpful.
For example, the Dutch entry
refers to “documents that can be
served under the Regulation:
judicial and extrajudicial documents
in civil and commercial matters”,
: 29
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Page 30
SERVICE IN THE EU
taken to the Dutch, French or
German version of the website.
The links operate from these
websites.The links include the
Commission website in relation to
the Regulation, a list of central
bodies acting under the Regulation,
and the websites of National
Associations of Sheriff Officers in
Belgium, France, the Netherlands
and Scotland.To access the English
language website, go to: www.euprocedure.be/EN
For direct access to the Dutch,
French and German sites replace
the “EN” with “NL”, “FR” or “DE”
respectively.
Translation of
documents to be served
All states accept postal service as an alternative method of
service but often subject to particular conditions. These
must be consulted in each case before arranging service
and the Italian entry to
“extrajudicial documents in
general”.The Austrian entry, by
way of contrast, defines an
extrajudicial document as one
“seeking to safeguard, pursue or
counter a civil or commercial claim,
but without involving civil court
proceedings”.The German entry,
which is similar to the Austrian,
gives notarised deeds, and out of
court settlements, as examples of
extrajudicial documents.The
French entry reads: “les actes
extrajudiciares émanant des
autorités et des officiers
ministeriels”.The English translation
“ministry officials” is inaccurate
because “officiers ministeriels” are
officials such as notaries public and
huissiers. In the Scottish context,
though not mentioned in the UK
entry, extrajudicial documents
would include extracts of
documents registered in the Books
of Council and Session, or sheriff
court books.
Other information
This document lists the
transmitting agencies, and gives
information about alternative
modes of service in the member
30 :
states. It indicates the languages in
which requests for service of
documents may be transmitted to
the receiving state. According to
this information, all member states
except Luxembourg and Portugal
will accept request forms
completed in English. In
Luxembourg, request forms must
be in French or German. In
Portugal, they must be in
Portuguese or Spanish.The
document to be served must,
however, in all cases be in an
official language of the place of
service in the receiving state, or
the language of the transmitting
state which the addressee can
understand (see below).
All states accept postal service as
an alternative method of service
but often subject to particular
conditions.These must be
consulted in each case before
arranging for postal service.
Austria, England and Wales,
Germany, Northern Ireland and
Portugal object to the direct
service of documents through the
judicial officers of their states.
Diplomatic or consular agents may
not serve documents in Belgium
and only on their own nationals in
Germany, Italy and Luxembourg.
Where a document is served in
Scotland, all states except
Luxembourg, Portugal and Spain
will accept a certificate of service
completed in English. For
documents emanating from
Luxembourg, the certificate must
be in French or in German; for
documents from Portugal, in
Portuguese or Spanish; and in
documents from Spain, only in
Spanish.
Information maintained by the
National Association of Belgian
Sheriff Officers
The National Association of
Belgian Sheriff Officers maintains
an English language website on
which may be found the
Regulation and standard forms in
English (which can be
downloaded) for use under the
Regulation. Unfortunately, the
“interesting links” takes one only to
the standard forms. In order to
obtain access to these links, click
on to the left hand abbreviation
NL(=Dutch), FR(=French), or
DE(=German) and you will be
According to the Court of Session
Rules 1994 and the Sheriff Court
Ordinary Cause Rules 1993, a
document to be served or
intimated abroad must be
accompanied by a “translation in an
official language” (RCS 16.6(1), RCS
16.8(1), OCR 5.5(6)) of the
country in which service is to be
executed, unless English is an
official language of that country.
According to article 8(1) of the
Regulation, the addressee may
refuse to accept the document
unless it is in:
(a) the official language of the
Member State in which service is
to be effected, or “one of the
official languages of the place
where service is to be effected”; or
(b) a language of the Member
State of transmission which the
addressee understands.
Since the Regulation takes
precedence over national rules (R
v Secretary of State for Transport,
ex parte Factortame [1991] AC
603), it would be possible to
dispense with a translation if the
defender understood English, but
this might not be advisable if it is
likely to lead to disputes about
whether the defender understands
English, or time need be taken up
explaining to the court why its
rules of procedure have not been
observed.
The language in which the
document must be served is an
•Journal_12-03
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Page 31
official language of the country
“unless one of the official languages
is English” (court rules), but “one of
the official languages of the place
where service is to be effected”
(the Regulation).This is not usually
a practical problem in the EU as
most states have only one official
language, even if regional languages
exist in the territory of the state in
which service or intimation is to be
made.Thus in France, for example,
a document would be served on a
Breton-speaker in French and not
in Breton; in the Netherlands, on a
Frisian-speaker in Dutch and not in
Frisian; and, when Slovakia joins the
EU next 1 May, on a Hungarian
speaker in the Hungarian speaking
regions of Slovakia in Slovakian and
not in Hungarian. Where, however,
the regional language has status as
an official language alongside the
national language in the region
concerned, for example, Catalan in
Catalonia, German in Alto Adige,
Italy, and when Slovenia joins the
EU next 1 May, Hungarian and
Italian in the Hungarian and Italian
speaking areas of Slovenia
respectively, the document might –
if more convenient – be translated
into the co-official language of the
region. English is an official language
in the Republic of Ireland alongside
Irish, and in Malta alongside
Maltese (relevant when Malta joins
the EU next 1 May).The court
rules seem to suggest no
translation should be made into
Irish, or Maltese; this conflicts with
the Regulation, but of course there
is no point in making a translation
if it is not needed; English suffices
for these countries.
Finland and Belgium are two
special cases. In the Åland Islands,
Swedish, not Finnish is the official
language; elsewhere in Finland,
either Swedish or Finnish may be
used. In Belgium, there are four
linguistic regions: the Frenchspeaking, the Dutch-speaking, the
German-speaking, and the bilingual
region of Brussels-Capital.
Documents must be translated
into the language of the region in
which service or intimation is to be
executed; in Brussels, documents
may translated into either Dutch
or French. (Note: Nederlands
(Dutch), and not Vlaams (Flemish)
is the official language of the
Flemish Region and one of the
official languages of Brussels:
www.taalunie.nl).
The following table shows the
official languages in each of the EU
Member States, and prospective
Member States, other than
Denmark and the United
Kingdom**. A separate entry is
shown for the Åland Islands, which
though part of the EU, have a
special constitutional status in
Finland and the EU***.
Implementation of the Regulation
The Regulation has direct effect in
Scotland, without any need for
implementing legislation (Treaty
Establishing the European
Community, art 249). With one
exception, the court rules do not
make reference to the Regulation.
An exception to this is that
reference is made to the
Regulation in the Sheriff Court
Ordinary Cause Rules, but only to
restrict requests for transmission
for service by the Scottish
Ministers as central body, and
through consular officials, to
exceptional circumstances only
(OCR 5.5(1)(d), inserted by AoS
(Ordinary Cause, Summary
Application, Summary Cause and
Small Claim Rules) Amendment
(Miscellaneous) 2003, para 2(4)).
While this is in line with art 3(c)
COUNTRY
LANGUAGE
AUSTRIA
German
BELGIUM: Brussels
Dutch, French
Flanders, Flemish Brabant, Antwerp,
Limburg (the Flemish Region)
Dutch
German Speaking Districts of
Eupen and St Vith
German
Walloon Region (other than
the German speaking districts).
French
CYPRUS
Greek,Turkish
CZECH REPUBLIC
Czech
ESTONIA
Estonian
FINLAND excluding the Åland islands
Finnish, Swedish
FRANCE
French
GERMANY
German
GREECE
Greek
HUNGARY
Hungarian
IRELAND
Irish, English
ITALY
Italian, German (Alto Adige),
French (Valle d’Aosta)
LATVIA
Latvian
LITHUANIA
Lithuanian
LUXEMBOURG
French, German, Luxembourgeois
MALTA
Maltese, English
NETHERLANDS
Dutch
POLAND
Polish
PORTUGAL
Portuguese
SLOVAKIA
Slovakian
SLOVENIA
Slovenian, with Hungarian and Italian as
co-official languages in the regions where
those languages are spoken.
SPAIN
Spanish, with the languages of the
autonomous regions co-official languages
in those regions.
SWEDEN
Swedish
ÅLAND ISLANDS
Swedish
relating to central bodies, it
conflicts with art 13 (service by
consular officials): it is arguable that
restriction on service under art 3
is ultra vires as it conflicts with the
UK declaration that the UK does
not object to art 13 service in the
United Kingdom, and is silent in
relation to its use for service
abroad (cf Taylor v Marshall’s Food
Group 1998 SC 841).
George Jamieson
Pattison & Sim, Paisley
Author’s Footnotes
*In Scottish practice, the technical expression “intimation”, which is not used in the official
English language version of the text, may nevertheless be used in relation to Scotland to
reflect the technical differences between service and intimation of court documents. In
most other language texts, except German, the Regulation refers to both notification and
signification in respect of service of court documents. While these do not necessarily
bear the same meaning as service and intimation of documents in Scottish practice, it is
recognised that a Scottish lawyer might well find more enlightenment in the French than
in the English text: RG Graveson, “The Tenth Session of the Hague Conference on
Private International Law”, ICLQ, 539(1965). Indeed, all language texts of the Regulation
are equally authentic and, in suitable cases, benefit might be had of making use, for
example, of the French or Dutch texts.
**See europa.eu.int.comm./enlargement or www.europa-wird-bunter.de: on 1 May
2004, 10 new countries will become Member States.The new Member States are
shown in italics in the table.
*** The entry appears last, following the convention of the Swedish alphabet, as “Å” is a
separate letter in Swedish, appearing at the end of the alphabet.
: 31
•Journal_12-03
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Page 32
people
Intimations for the people section should
be sent to
Denise Robertson, Record Dept, Law Society of Scotland,
26 Drumsheugh Gardens, Edinburgh EH3 7YR
e: deniserobertson@lawscot.org.uk
AITKENS,THE FAMILY
LAW SOLICITORS,
Livingston, are delighted to
announce that they opened
a branch office at 37 East
Main Street, Broxburn, West
Lothian EH52 5AB on 22nd
September 2003.The office
is initially operating on a
part-time basis opening each
Tuesday and Thursday.The
branch office is operated by
the partners of the firm,
Julian G F Aitken and Lynne
V Di Biasio, both of whom
shall retain their principal
place of business at the
firm’s Livingston office. Both
the telephone and fax
number at the Broxburn
office are 01506 858818. As
the Broxburn office is to
operate on a part-time
basis, all correspondence
and telephone enquiries
should be directed to the
firm’s Livingston office in the
first instance.
BRECHIN TINDAL OATTS,
Glasgow and Edinburgh, are
pleased to intimate that on
1st November 2003 their
associates, Pauline McBride,
Catherine Ann Currie and
Stephen Charles Bryceland
were assumed as partners
of the firm and another
associate, Aileen Grace
Ferguson, became Legal
Director of the firm’s Health
& Safety Training
Consultancy. On 13th
October 2003, Wendy Jane
Thomson re-joined the firm
as an associate.
BRODIES, WS, Edinburgh,
intimates the resignation of
partner Moira Clark with
effect from 31st October
2003.
32 :
BURNETT CHRISTIE,
Edinburgh, are pleased to
announce that Stephen
Vincent Knowles was
assumed as a partner with
effect from 1st November
2003.
BURNSIDE KEMP FRASER,
Aberdeen, are delighted to
announce with effect from
1st November 2003 Nicola
Tamara Brown has been
appointed as an associate in
the firm. Charles William
Simpson Fraser retired as a
consultant on 31st October
2003.
ROBERT CARTY & CO,
Lanarkshire, are delighted to
announce that Louise
Loughlin has been
appointed partner at their
Airdrie office with effect
from 1st September 2003. In
addition Julie Ross and
Siobhan Tansey have been
appointed as associates, both
at the Hamilton office. The
firm also intimates that
Alison Jane Harvie and
Stephen McQuillan have
resigned as partners.
CCW, LLP, Edinburgh &
Dunfermline, is delighted to
announce that it
commenced practice on 1st
November 2003 following a
demerger of PAGAN
BUSINESS LAW from
PAGAN OSBORNE
GROUP. Stephen Cotton,
John Clarke and Carolyn
Wilson are the members of
CCW LLP and all PAGAN
BUSINESS LAW employees
have transferred to the new
firm. CCW’s offices are at
40 Charlotte Square,
Edinburgh EH2 4HQ and
Thomson House, Pitreavie
Court, Dunfermline KY11
8UU.
Fiona W Cumming intimates
that she resigned as an
associate with FYFE
IRELAND, WS on 30th
November 2003, prior to
embarking on a new career
outwith the legal profession.
DIGBY BROWN, Personal
Injury Lawyers, Glasgow,
Edinburgh, Dundee and
Glenrothes wish to
announce the appointment
of Rhoderic J Stewart as an
associate with effect from
6th October 2003. Mr
Stewart is based in the firm’s
Edinburgh office.
KERR BARRIE, Glasgow,
intimate the retiral of their
consultant, Owen H Speirs,
with effect from 31st
December 2003 and the
appointment as an assistant
of Isabel M Gargan with
effect from 1st December
2003. Miss Gargan was
previously an associate with
WALKER LAIRD, Paisley and
Renfrew.
AUSTIN LAFFERTY,
Solicitors and Estate Agents,
Glasgow and East Kilbride,
are delighted to make the
following announcements:
our qualified assistant
Jonathan E Cushley has
been appointed associate
and as of 24th November
we have opened our third
office at 213 Fenwick Road,
Giffnock, Glasgow G46 6JD;
telephone 0141 621 2212;
fax 0141 621 1342.This
office will be an estate
agency outlet within the
GSPC network and will also
operate as a commercial
fine art gallery.
LINDSAY DUNCAN &
BLACK, WS, Edinburgh,
hereby intimate the retiral
from the firm of their senior
partner James G Davidson
with effect from 31st
October 2003.The
remaining partners Nigel
Hutchison and Alan
Davidson continue to
practise under the firm from
their existing address at 16
Queen Street, Edinburgh.
James Roy McCulloch
Grant intimates that with
effect from 31st October
2003 he has retired from
the practice of ROY
GRANT & CO, 1 Albert
Street, Aberdeen, after 34
years as senior partner and
principal.The practice will be
continued by Kevin Wallace,
Alexander Davidson and
Julie Anna Rowson, the
partners of the firm of
K.W.A.D., 23 Rubislaw Den
North, Aberdeen, who will
in future carry on both
practices at 1 Albert Street,
Aberdeen where Mr Grant
will act as a consultant.The
name ROY GRANT & CO
will continue to be used as a
trading name of K.W.A.D.
MOWAT DEAN, Edinburgh
and ANNE HALL DICK &
CO, Glasgow, are delighted
to announce their
amalgamation to form the
new firm of MOWAT HALL
DICK, whose offices will be
at 45 Queen Charlotte
Street, Leith, Edinburgh and
157 Kilmarnock Road,
Shawlands, Glasgow. The
partners of the
amalgamated firm will be
Nigel Hugh Mackay,Anne
Hall Dick,Thomas Matthew
Ballantine,Wendy Anne
Sheehan, Elizabeth
Thomson McFarlane and
Mark Bruce Peggie.The
associates will be Elspeth
Anne Williamson and
Lesley-Anne Barnes. Peter
Alexander Dean will remain
a consultant.
As part of their year end
round up MUNRO &
NOBLE, Inverness, are
delighted to announce that
Deirdre E M Hart and R
Murray McCheyne were
assumed as partners on 1st
April 2003.
Jim Steel, Hilary Eldridge
and Dermot Stewart are
delighted to announce that
they continue to practise
from the existing offices at
18 Crossgate, Cupar under
the firm name of STEEL
ELDRIDGE STEWART.Their
telephone and fax number
remain unchanged and are
01334 652285 and 01334
656331.
THOMPSONS, Glasgow
and Edinburgh, are pleased
to intimate that with effect
from 1st November 2003
Paul Kirkwood was
assumed as a partner in the
firm and Patrick McGuire
and Michael Sellar were
appointed associates.
WILSON TERRIS & CO,
SSC, Edinburgh, are pleased
to announce the
appointment of Grace
Margaret McGill as an
associate of the firm with
effect from 1st December
2003.
•Journal_12-03
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Page 33
•Journal_12-03
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Page 34
LEGACY GIVING
ADVERTISING FEATURE
Charitable campaign owes its
success to solicitors’ support
Recent research carried out
among 200 solicitors’ firms across
Scotland, England and Wales
during August 2003, shows that
the legal sector is helping to
increase the number of wills that
include a charitable bequest. And
according to further research
carried out on behalf of
Remember A Charity, support
from 250 firms means that in less
than a year, the number of people
“very likely” to leave money to
charity in their wills has doubled.
Among solicitors who know
about the campaign:
32% always prompt for charity
(compared with 19% who don’t
know about the campaign);
22% say that half of all wills they
draft contain a charitable bequest
(compared with 16% who don’t
know about the campaign).
Solicitors’ attitudes towards
charitable wills are changing too:
recent research that shows a 1%
increase compared with 2002 in
the proportion of those who have
recently made a will who say they
have included a charity.This means
a substantial sum in money terms.
72% say that 1 in 4 clients include
a charity (up from 65% in 2002)
Patricia Milner, principal with
Withers LLP, a Remember A
Charity founder supporter, says:
“Solicitors can play a positive role
merely by raising the issue of
charitable giving. One of the main
barriers to leaving a donation to
charity is lack of awareness and
we are supporting the campaign
to raise the profile of charitable
giving.”
These findings are backed up by
Campaign supporters include high
32% consider it acceptable to
include charity bequest in the
prompt list (up from 24% in
2002);
40% say they will personally leave
a charitable bequest (up from
16.2% in 2002);
street solicitors and leading private
client firms. HSBC and Barclays are
also supporters and have
developed a fact sheet about
charitable giving to include in their
customer will writing packs which
are sent to over 150,000 people a
year.
A guide for solicitors and financial
advisers who are writing and
advising on leaving a charitable will
is available.
Call 020 7930 2620 or visit
www.rememberacharity.org.uk
Remember A Charity currently has
111 charity members representing
charities of all sizes and causes.
•Journal_12-03
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LEGACY GIVING
ADVERTISING FEATURE
Keep the
leaflets handy
for your clients
Why do charities aim advertising
at solicitors dealing in wills and
executries? Simple: a third to a half
of most charities’ income comes
from legacies. As there are an ever
increasing number of charities, this
results in more competition
between charities for legacies.
Interestingly, out of all the
bequests received the charities will
have only been informed by a
very maximum 50% of the
deceased that they were leaving a
bequest before they passed away.
The other bequests received are
from people who weren’t even on
the charity’s database.
So how do these people decide
which charity to leave a bequest
to? Obviously the charities can’t
ask the deceased and so it is
presumed that some of these will
have decided whilst at their
solicitors when discussing their
will. Evidently the solicitor cannot
service that the solicitor can offer
to their clients. For example, many
of you may have seen the dog
shown opposite fronting an advert
for Dogs Trust. He is advertising
the Canine Care Card which is a
free service solicitors can offer to
those clients of theirs who have a
dog. Dogs Trust refuses to destroy
a healthy dog so the owner can
be assured their dog will be
looked after for the rest of its
natural life.
It is worth noting that before
October Dogs Trust was known as
the National Canine Defence
League (NCDL). After some
research it was decided to change
the name for a variety of reasons
but mainly due to brand
recognition. Since the start, over
100 years ago, the NCDL has
become the largest dog welfare
charity in the UK but was found
to be recognised by only 6% of
the population. On a less
serious side they had
people ringing up asking
for information on their
cat as they did not
understand what canine
meant!
Next time you receive
anything from a charity to
do with wills please don’t
bin it straight away
exert undue influence on his or
her client, but if the client wants
to leave money to an animal
charity, say, then giving the client a
publication like Charities Choice
could mean their client is there for
the rest of the day deciding. If
however they have a few recent
leaflets from some animal charities
then it makes their client’s choice
easier.
Other charities can provide a
So next time you receive
anything from a charity
to do with wills please don’t bin it
straight away. Remember they are
hoping to use you as a medium in
an attempt to gain more support
and funding through legacies. By
keeping hold of them and passing
details on to clients who are
interested in their area of work
you are not only helping the
charity but indirectly helping the
millions of people and animals
they work with every year.
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Page 38
LEGACY GIVING
Charities in Scotland can have an
identity problem. Just as there is The
Law Society and The Law Society of
Scotland as well as two distinct
national Chartered Accountancy
bodies, so some charities only
operate in Scotland while their counterparts cover the rest of the UK.
Remember the
Scottish dimension
One such charity is The National
Trust for Scotland whose bigger
relation The National Trust does
not operate within Scotland’s
borders. Not a problem as long as
everybody realises this, but with
the higher profile the NT enjoys in
UK media this is unlikely. Solicitors
have an important role to play in
ensuring that clients who wish to
support Scottish charities know
what distinguishes them from
others as well as knowing how to
direct gifts etc specifically to
Scottish operations of UK charities
when this is wished.
Many private clients do wish to
help heritage or conservation
causes but might not also
appreciate the full extent of what
the National Trust for Scotland
covers. Just for a start there are –
castles, crofts, mansions, moors,
munros (56!), islands, highlands,
gardens, art, antiques, archaeology,
architecture, gardens, species
recovery, little houses
improvements, diverse collections,
furniture, footpaths, coastline,
nature reserves, seabird colonies,
marine life, wildlife habitat,
wilderness. All this managed
sensitively and expertly for the
benefit of our environment and
for the access, education and
enjoyment of the public – for ever.
There is no direct funding of the
NTS from the Government.
Clients can make donations
including legacies for the Trust’s
general purposes and these will be
used only on built or country
properties in most urgent need,
never on day to day costs. Clients
can also specify how or where
they would like their gift to be
applied, such as Aberdeenshire,
facilities for the less able etc.
NTS has produced a Guide to
Legacies for potential benefactors
and their advisers. If you need
more for clients or colleagues or
you ever have any queries
contact Sandy Weir, Legacy
Adviser, at:
The National Trust for Scotland,
Wemyss House,
28 Charlotte Square,
Edinburgh EH2 4ET
Tel 0131 243 9308
Fax 0131 243 9301
Email sweir@nts.org.uk
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Page 39
ADVERTISING FEATURE
Making donations through the tax system
For those who wish to make
charitable donations from current
earnings, the following information
summarised from the Inland
Revenue website
www.inlandrevenue.gov.uk/charities
may be helpful.
Donating self assessment tax
repayments
From April 2004 self assessment
taxpayers will be able to donate
their tax repayments to a UK
charity using the tax return.This
new way of giving has the
potential to generate a
considerable amount for the
charities who participate. More
than one charity can be
nominated, and taxpayers can set
a limit on the amount to be
donated in this way.
Carrying back Gift Aid relief
From 6 April 2003, a taxpayer
who makes a gift to charity using
Gift Aid can elect to have his/her
higher rate tax relief carried back
to the previous year of
assessment.Taxpayers can claim
for donations made from 6 April
2003 to the date they send in
their tax return and by 31 January
2004 at latest. (They cannot claim
carry back of relief if they file their
tax return late – after 31 January.)
This means that taxpayers can get
the tax incentive immediately
against the tax on the return.
The relief is claimed simply by
entering the donation(s) in the
Gift Aid box in the tax return.The
charity’s position is unaffected as it
will receive its donation and claim
its repayment of tax paid on the
donation in the same way as it
does now.
Taxpayers can claim for donations made from 6 April 2003 to the date they
send in their tax return and by 31 January 2004 at latest. This means that taxpayers can get the tax incentive immediately against the tax on the return.
Payroll Giving
All donations under Payroll Giving
made between 6 April 2000 and 5
April 2004 will be topped up by a
10% supplement paid by the
Government.The supplement is
claimed from IR Charities by
agency charities and distributed
with employees’ donations.
Where employees are provided
with vouchers by the agency
charity the 10% supplement is
credited to the employee’s
account. So the amounts of
vouchers given to charities will
include the supplement.
There is no obligation on an
employer to set up a scheme, but
the 10% supplement scheme is an
incentive by the Government to
encourage employers to do so.
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professional practice
This month, ALISTAIR SIM of Marsh considers how setting out the
terms of their engagement and terms of business assists solicitors manage their clients and their clients’ expectations and helps to minimise
the risk of claims and client dissatisfaction.
Marking out the pitch
Following a recent Risk
Management event, the author
was asked by some delegates to
provide a suggested terms of
engagement wording. Styles of
wording already exist and, as
examples, reference is made to
those in the Society’s Better Client
Care & Practice Management
manual (the “Client Care
manual”).The terms and
conditions included in terms of
engagement will necessarily vary
from firm to firm and from client
to client and the nature of the
work and other circumstances will
determine the specific issues that
need to be addressed.The most
effective terms of engagement are
those tailored to the specifics of
the particular instruction.
Consideration is given here to just
some of the issues that may be
addressed in setting out the firm’s
terms of engagement in a way that
assists in managing risk.
Work to be carried out
What will and what will not be
the solicitor’s responsibility
Scoping the work is probably one
of the most critical aspects of risk
management. It is vital that both
40 :
the solicitor and his client are clear
precisely what work the solicitor is
and is not responsible for.
As well as describing clearly the
work for which the solicitor has
agreed to take on responsibility,
the terms of engagement might
usefully state what the solicitor will
have no responsibility for and
about which there is the potential
for uncertainty. It might be stated,
for instance, that the solicitor will
have no responsibility for advising
on any tax implications of the
transaction.
If there are other professional
advisers involved (e.g. accountants,
financial advisers, architects), it is
particularly important for the
division of responsibilities to be
spelt out so as to minimise the
risk of the firm being held
responsible for something that
other professionals are, or ought
to be, attending to.
If the nature of the instruction
changes at any stage, the terms of
engagement ought to be reviewed
and amended or fresh terms of
engagement issued. Otherwise, the
benefit of issuing terms of
engagement may be lost in whole
or in part.
How instructions to be given
Method by which instructions
should be given and received
It has been suggested that terms
of engagement might address the
form in which the clients’ critical
instructions require to be
communicated. For example, it
might be stated that instructions in
relation to a client’s house
purchase/sale must be
communicated to the firm either
in writing or otherwise directly to
the person handling their
transaction.
The following form of words
features in specimen wording in
the Client Care manual.
“Instructions: Instructions may be
given to us in writing or verbally.
We may well ask you to confirm
in writing the terms of verbal
instructions given to us. If there is
any change in your instructions
you must notify us immediately. If
you wish anyone other than
yourself to give us instructions or
information, we will require
confirmation of this in writing.”
Such a clause might be extended
to cover who, if anyone, has
authority to give instructions on
behalf of the client, e.g. who is the
authorised person if the client is a
company or a partnership,
husband/wife or other multiple
clients.
Fees and outgoings
The fees and outgoings to be
charged or the basis on which
they are to be charged (including
VAT) and the circumstances in
which those charges may vary
If clients have no reason to
anticipate that the total bill will
exceed the amount estimated at
the outset, there is a real risk of
dissatisfaction and the possibility of
having difficulty in securing
payment – even, from experience,
of provoking allegations of
negligence.
The following form of words is
suggested in a specimen wording
contained in the Client Care
manual:
“Estimates: Any estimate that may
be given will be a probable fee
based on our experience of the
work you have asked us to do. If
the work turns out to be more
complicated or takes longer than
we anticipated then we may
require to increase our estimate
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risk
management
The client needs to provide instructions, signatures, documentation and
information when required, otherwise
it will be difficult to keep to timescales
or, worse, the client’s position may be
prejudiced.
to take account of this. We will
inform you as soon as possible
about this. Sometimes we will
need confirmation of your ability
to fund a transaction, and a
deposit may be requested.”
It may be appropriate to be clear
with the client how they will be
kept appraised of the level of
charges. Again, this is covered in
specimen wordings in the Client
Care manual.
Client’s responsibilities
Clients need to understand that
they too have a number of
responsibilities
The client needs to provide
instructions, signatures,
documentation and information
when required, otherwise it will be
difficult to keep to timescales or,
worse, the client’s position may be
prejudiced. As an example, the
following form of words is
adapted from one of the
Care manual:
“Your responsibilities:
You must:
Give us instructions that allow
us to do our work properly
Not ask us to work in an
improper or unreasonable way
Not deliberately mislead us
Co-operate with us when asked
Go to any medical or expert
examination or court hearing
when asked
Provide any documentation or
information to us promptly when
requested
Advise us of any change in your
instructions or in your contact
details
Pay our fees (including interim
fees) when requested to do so”
This provides only a broad
indication of the client’s
responsibilities. As matters
progress, it will be possible to be
more precise about what is
required from the client and by
when.
Timescale
It is helpful to provide the client
with an indication of the time the
transaction is likely to take
The client may have little idea of
what is involved in a particular
matter and one of the objectives
of setting out the terms of
engagement is to manage the
client’s expectations in relation to
timescales. It may be useful to
indicate the sort of circumstances
in which the timescale may
become extended, through no
fault on the part of the solicitor.
Flagging this up with the client may
prevent the client subsequently
becoming dissatisfied, unjustifiably,
with the solicitor’s service.
The following form of words is
adapted from one of the
Care manual:
“The nature of legal work,
particularly court work, often
makes it difficult to estimate
precisely how long something will
take to complete. When we
discuss your requirements at the
outset we will also discuss
timescales. We do attempt to
meet these – even to beat them –
and always to deal with everything
as quickly and efficiently as
possible. Please remember that
quite often the speed at which
work can be completed is affected
by the co-operation (or lack of it)
we receive from other people
outwith our control. For instance,
in property matters there may be
delays on the part of lenders or
local authorities. In court
proceedings there can be delays
due to lack of court time.”
How monies are to be remitted
Be clear about how you will
remit monies due to the client
This may prevent potential
complications at a later stage in
the transaction etc. Consider, for
example, the potential risks
associated with a client insisting
that sale proceeds be remitted to
a third party along the lines of the
following case study from the
2003 Risk Management
Roadshow:
At the conclusion of a commercial
property sale, a cheque for the
£350,000 sale price less the fees
and outlays was issued to the
clients, ABC plc along with a
statement explaining everything. A
day or two later, the Finance
Manager from the company
telephoned the senior assistant in
the firm who had handled the
transaction and arranged for the
cheque to be cancelled and
replaced with a cheque made out to
ABC (Guernsey) Ltd. A week after
the replacement cheque was
uplifted from the solicitors, the
Finance Director of ABC plc
contacted the senior assistant
sounding extremely irritated that the
sale proceeds hadn’t been received
and asking for an explanation.
Although the Finance Director had
been led to believe that his
subordinate was currently on holiday,
he had in fact disappeared having
deposited the replacement cheque
offshore.
At the very least, terms of
engagement could specify that the
firm will not accept verbal
instructions to change or amend
cheque payments. Considering the
issue of who has authority in a
limited company, it might be
appropriate to specify pre-agreed
parties authorised to instruct/vary
cheque payments/instructions. For
all the foregoing reasons, it may be
appropriate simply to state
categorically that cheques/transfers
will be issued in the client
company name and in that name
alone.
Contractual limitation of liability
Some firms seek to limit their
liability to clients by way of a
contractual agreement between
the firm and the client.This might
be incorporated in setting out the
firm’s terms of engagement.
Consideration needs to be given
to whether such a limitation will
be enforceable; and how such a
limitation will protect the firm
from a claim by a third party who
is not a party to the agreement.
Will the client agree to indemnify
the firm against any such claims?
How will that be documented?
Some solicitors seek to bind their
client to pursue any claim against
the firm itself and not to pursue
any claim against an individual
within the firm, personally.
Conclusion
A short time spent at the
beginning of a matter setting out
the scope of the work and the
terms on which the solicitor/client
relationship is to proceed can help
to avoid complaints and claims
arising from misapprehensions as
to what was agreed, the respective
responsibilities of solicitor and
client and how the work is to be
handled.
This article is intended to highlight issues on a general basis relating to
insurance and risk management and does not contain legal, tax, accounting or
investment advice. In view of its purpose, the article cannot have regard to
any individual circumstances and Marsh cannot accept responsibility for the
completeness and accuracy of its content for particular application. If you
have legal, tax, accounting or investment queries regarding issues raised in this
article, you should contact your usual professional advisers in those specialist
fields. Alistair Sim is a Director in the Professional and Financial Risks Division
at Marsh Ltd (e-mail: alistair.j.sim@marsh.com).
: 41
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professional practice
Sending unsolicited marketing emails has just become a
more hazardous business, warns PAUL MOTION
A merry Spam-free Christmas
It is getting less and less
fun to do business using
mobile phones and email!
First of all, on 1
December, the
Government introduced a
new regime for the users
of mobile telephones.
Anyone caught using a
mobile whilst driving a
vehicle, without a handsfree set, faces an on-thespot fine of £30 and/or
prosecution. A two-month
42 :
period of grace in England
and Wales has not been
replicated in Scotland – so
much for the Christmas
spirit! But there is also a
new regime for deskbound types, since much
tighter rules have been
introduced for the
regulation of direct
marketing by way of email
and SMS text messages.
The Privacy and Electronic
Communications (EC
Directive) Regulations
2003 came into force on
11 December 2003.These
implement EC Directive
2002/58/EC which is
concerned with processing
of personal data and the
protection of privacy.The
regulations also concern
the use of cookies (small
files left on a web user’s
computer so that the
website knows who the
user is and which pages
they visited, when next
they come calling).
There has been some
business and a lot of
political pressure to do
something about spam
emails. According to
MessageLabs, spam email
now accounts for over
50% of all email
communications.To give
some idea of the growth,
spam accounted for 3% of
email less than 18 months
ago.Various calculations
have been bandied about
but one of the more
reliable suggests that a
company employing 500
people could be losing
£3,300 per month in
productivity due to the
time taken to deal with
spam alone.
This is all the more
surprising when one takes
into account the UK’s
implementation of the E-
•Journal_12-03
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Page 43
Information
technology
The individual has given
their permission to receive
the material.
Privacy campaigners were
disappointed, and business
mightily relieved, by the
final wording of the 2003
Regulations. Companies
are therefore still free to
send unsolicited
commercial email to
each other.
Spam, spam, customers
and spam
commerce Directive by
means of the Electronic
Commerce (EC Directive)
Regulations 2002.These
regulations already require
that “unsolicited
commercial
communications must be
clearly and unambiguously
identified as such”.They
require that unsolicited
email communications
must be capable of being
identified as such without
opening the message.
Who, when
and how
The new regulations
being introduced in
December 2003 will
affect:
The DTI line is that the
recipient has to agree in
advance to being sent
marketing emails, except
where there is an existing
customer relationship, in
which case companies may
continue to email or text
for the purposes of
marketing their own
similar products on an
“opt out” basis.
What is meant by an
“existing customer
How you can email them.
In short, from 11
December 2003 it is, as
explained below, a criminal
offence for a UK company
to send an email or an
SMS text message to an
individual unless:
There is an existing
customer relationship with
the individual; or
Further, it will be noted
that the permission to
continue spamming
existing customers is
restricted to “similar
products and services
only”. Accordingly, as the
UK Online For Business
website puts it: “if the
existing relationship is in
reference to widgets you
can continue to
communicate on that
subject, but you shouldn’t
if you now wish to market
holidays or another
product that is not similar.
So for example, buying a
washing machine from an
online retailer would
permit the retailer to send
you spam in relation to
other white goods, but not
of the above matters
which is to be found at
www.dataprotection.gov.uk
Existing mailing lists
According to the letter of
the new Regulations, any
existing mailing list that is
a combination of business
and personal email
addresses – or which has
not been checked to
establish which is which –
may place directors of the
company at considerable
risk, if a spam message is
sent to an individual who
has not consented or with
whom there is no
customer relationship.
Offenders face a fine of
£5,000 for every breach.
The DTI was lobbied
heavily during the
consultation process on
these regulations but they
had no choice than to
implement the clear
wording of the Directive.
The DTI line is that the recipient has to agree in
advance to being sent marketing emails, except
where there is an existing customer relationship,
in which case companies may continue to email
or text for the purposes of marketing their own
similar products on an “opt out” basis.
Who you can email
When you can email
them
prevailing view of the DTI
is that “existing customer
relationship” is wide
enough to cover precontractual
communications.
relationship”? First of all,
the company must have
obtained the customer’s
email address in the
course of “sale or
negotiations for the sale of
a product or service to
the recipient”. On the face
of it this would appear to
exclude the provision of
data during a website
registration process.
However, somewhat
controversially, the
in relation to insurance
services.
Finally, the customer must
always be given a
straightforward method of
suppressing the use of his
personal data for the
purposes of direct
marketing, at the time the
information is originally
collected.
The Information
Commissioner has issued
guidance in relation to all
The Information
Commissioner and DTI
have indicated that
discretion will be applied,
and it is understood that
so long as companies can
demonstrate they adhered
to the principles of the
Data Protection Act 1998
when they collected data
prior to the coming into
force of these regulations
liability is likely to be
avoided.
Cookies crumbled
Regulation 6 requires
greater transparency in
relation to cookies, bugs,
and other forms of
spyware. Cookies are now
banned unless web
consumers are told
unequivocally that they are
going to be used and are
given the chance to refuse
their use. Unhelpfully the
regulations do not bother
to explain how this might
be done. It is understood
that the DTI will issue
further guidance.There is
a limited exception for
cookies that are only used
to enable transmission of
content, but most
businesses will want to
review their procedure for
cookies generally.
The bits that bite
Regulation 30 creates a
new civil right to damages
with the claim lying against
a person who contravenes
any requirement in the
regulations. Bear in mind
that only a few of the
requirements have been
mentioned in this article.
Reasonable care will be a
defence.
Regulation 31 effectively
bolts on the enforcement
regime of the Data
Protection Act 1998 to
the new Regulations.The
Information Commissioner
can also serve an
enforcement notice.
Failure to comply with the
notice will result in
conviction and a fine not
exceeding £5,000 – and
there is the possibility of
an unlimited fine.
Finally – will any of the
worst overseas spammers
care about the above?
Humbug!
: 43
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INTERVIEW
Opening up the Bench
Sir Neil McIntosh’s primary agenda for the Judicial
Appointments Board is to remove barriers in the way of
potential applicants, he tells PETER NICHOLSON
You might think that when
the Judicial Appointments
Board for Scotland
received 214 applications
for the first round of
shrieval vacancies they
advertised, they felt the
job was more than they
bargained for. But
Chairman Sir Neil
McIntosh gives no hint at
all that numbers might be
more than the Board can
cope with.
Sir Neil McIntosh
“In some ways I would
hope that we will have
even more applications
when we do it again as
people will have seen the
way we approached our
task and hopefully we’ll
have been able to
demonstrate that there’s
no barrier to anyone who
feels that they have the
relevant experience and
speaking of gender or
ethnic balance, appropriate
procedures or the scope
of the Board’s work, Sir
Neil comes over as
genuinely seeking ways to
encourage as many as
possible to offer their
services.
A recurring theme in the
whole judicial
appointments debate has
been the apparently
conflicting pressures
reflected in the official
remit, by which the Board
must appoint strictly on
merit but should also
“consider ways of
recruiting a Judiciary which
is as representative as
possible of the
communities which they
serve”. Sir Neil is
comfortable with the
tension. “The additional
not one of positive
discrimination but to try to
ensure there are no
barriers which mean that
those coming forward are
not in themselves able to
come from every sector of
society.”
The equal calibre of female
candidates is
demonstrated, says Sir
Neil, by the last round of
appointments when the
proportion of women
remained at roughly 25%
from application through
to appointment – with no
question of any quota
system, he asserts.
The lack of ethnic and
minority community
applicants, on the other
hand, reflects their underrepresentation in the
profession. “Now again
that is self evidently not a
Hopefully we’ll have been able to demonstrate
that there’s no barrier to anyone who feels that
they have the relevant experience and the
capabilities from coming forward
the capabilities from
coming forward.”
This theme becomes a
leitmotiv running through
our interview. Whether
44 :
expectation – I think the
best way to express it is
how the judicial system
can best reflect society. It’s
not purely representative
… The first step really is
question of capability and
so there may be reasons
which mean that people
from that background
don’t see the law as
offering real opportunities,
and that’s something that
we’d be anxious to
explore with those who
are engaged with that.”
Could recognising
experience from outwith
court practice be a means
of broadening the range of
appointments? “I think we
would recognise that
experience may not be
defined narrowly and that
in some cases we will be
recommending people for
appointment because of
potential rather than
because they already have
all of the skills and all the
range of experience they
will acquire when they
serve within the judicial
system.”
“There are the statutory
requirements and that’s
what we apply. Beyond
that it’s a question of
assessing the relevant
experience that a
candidate puts forward
and we have published the
criteria which we use and
continue to develop.” Any
activity which has been in
a judicial or semi-judicial
setting is relevant, he adds.
Sir Neil regards the Board
as still in a developmental
stage, particularly in
establishing procedures
sufficiently robust to
•Journal_12-03
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4:32 pm
support appointments
which may be for very
many years on the bench.
The application form has
been improved so that
candidates demonstrate
how they match the
criteria almost by a
process of self assessment;
reference material and the
interview process have
been similarly addressed.
The assessment centre
process in use in England
and Wales is also being
considered. Beyond that,
Sir Neil adds, “We
positively welcome
suggestions, ideas, thoughts
from those within the
profession” – whether
professional bodies or
individual candidates or
others who feel they have
some feedback to
contribute.
“It’s important that we
develop appointment
processes which ensure
that candidates are able to
demonstrate their qualities
in the most effective way
and also that we have the
strongest base on which to
make very significant
recommendations.”
When the idea of the
Board was under
discussion, the proportion
of lay members
undoubtedly raised
eyebrows in certain
quarters. Sir Neil, whose
own career lay in local
government, culminating as
Chief Executive of
Strathclyde Region,
concedes his interest but
insists that the Board
doesn’t see itself as two
sides. “We simply do not
see the way in which we
work in that setting. And
it’s certainly my
perspective that the quality
and calibre of the
members of the Board is
of the very highest. … The
Page 45
one point which of course
is fundamental is that the
professional members of
the Board are expected to
be the prime advisers in
relation to the professional
ability of candidates and
we recognise that. But
what we’ve found is that
we all bring something to
the table from our own
particular background.”
While interviews are
recommendations, “I think
that what we would
expect is that there would
be contact with the Board
and that we would be
advised and be able to
make a judgment as to
whether we thought that
was reasonable or fair”.
And if a recommendation
were not accepted for
political reasons? “I think
we would all have to
established of openness,
accessibility and equality of
opportunity.That is being
considered by the minister
and therefore I make no
further comment at this
stage.”
Is the Board able to draw
on experience in other
jurisdictions? “As you look
across the world you
discover that we’re
relatively unique in terms
able to carry through the
job, but I’m conscious of
my own limitations in that
sense.”
As for appointments to
any new Supreme Court,
“To be honest I don’t have
enough of a knowledge
base of supreme court
activity to be able to give
an authoritative view on
that. I think it will be very
interesting to see how the
If you’ve got a good chairman it doesn’t matter what their
background is if they’re able to carry through the job
carried out by smaller
panels, both the initial sift
of applications and the final
consideration of
appointments are normally
by the full Board, at which,
Sir Neil says, the range of
members’ experience is
applied in full. Lay
members are always asked
to offer their assessments
first, to ensure that there is
no conscious or
unconscious deference to
the lawyers.
The most surprising
revelation in our discussion
is that while Sir Neil feels
it essential for it to be
seen as independent that
the Board be placed on a
statutory footing, he does
not want to change its
purely advisory nature. “I
think it’s right that in
essence the appointment
should rest with the First
Minister who is
democratically
accountable. So the actual
process of being a
recommending rather than
an appointing board is I
think the right one.”
If the First Minister were
minded to make a
different appointment,
perhaps following the Lord
President who has the
right to comment on
consider our position. I
mean that would simply be
undermining the whole
reason for our existence.”
“I should stress that every
recommendation we’ve
made to date has been
accepted and there has
been absolutely no political
interference. We’re a
fiercely independent group
of people so from that
point of view I don’t think
our independence would
in any way be challenged
by still being a
recommending rather than
an appointing body.”
In its annual report the
Board questions the
current practice which
gives it no role in
temporary appointments
to the Supreme Court
bench, or in shrieval
transfers (since vacancies
are only advertised if not
filled on being circulated to
serving sheriffs). “We’d like
clarification on those issues
because obviously what
we’re trying to do is to
apply the general principles
upon which we have been
appointed … The situation
is one in which we
recognise there are
different arguments, but
we approach it from the
principles on which we are
of the composition of the
Board and the way in
which this is handled.
Probably in Canada you
have one of the closer
matchings. But what we’re
doing is drawing from a
range of international
bodies to make sure that
we don’t just simply make
assumptions and
presumptions.”
In England the prospect of
an independent board
remains at the stage of
vigorous debate, but Sir
Neil doesn’t insist on the
Scottish model as the
most appropriate, due not
least to the differences in
scale: “While we continue
to involve all of our
members in the broader
processes of appointment,
to do that south of the
border would be much
more demanding, much
more difficult.” Equally the
extent of lay involvement
remains controversial. “I
would expect people to
be very dubious about
having a lay chairman. It’s
not for me to comment
whether that helps or not.
My own view I think
would be that if you’ve got
a good chairman it doesn’t
matter what their
background is if they’re
appointment process is
developed and that will
come back particularly in
Scottish terms to reflecting
the distinctive
characteristics and standing
of the Scottish law
system.”
As we conclude he
volunteers the rather
puzzling observation that
lawyers are not best
equipped to cope with job
interviews. “While most
people coming in are well
accustomed to courtroom
pressure, an interview is
quite different, and we do
have people coming
forward who at times may
not give of their best in an
interview situation and
therefore we’re anxious to
ensure that we have as
robust a process as
possible that permits
people to give of their
best.That’s important.”
Whatever the process
adopted, “At the end of
the day there is still an
element of pressure, but
then of course the people
who are going on to the
bench will have to be able
to cope with that. We’re
just trying to make sure it’s
fair to all.”
: 45
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Page 46
FROM THE SOCIETY
Value of
the Unit
Following the annual
Survey of Legal Practices
which provides the
information for review of
the recommended value of
the Unit, with effect from 1
January 2004 the
recommended value of the
Unit in Chapter 3 of the
Table of Fees for General
Business will be £11.30.
The Table of Fees will be
updated with effect from 1
January 2004 and will be
posted on the Law Society
website at
www.lawscot.org.uk.The
changes are significant,
particularly to Chapter 1
(General Regulations)
paragraph 5; Chapter 3
(Detailed Charges);
Chapter 5 (Executries and
Trusts) and Chapter 10
(Negotiated Settlements of
Compensation Claims).
For those who wish a
paper copy please contact
Lisa Hamilton at Law
Society of Scotland, 26
Drumsheugh Gardens,
Edinburgh EH3 7YR or LP
1 Edinburgh - 1.
Authors wanted
The Society has a joint books
agreement with the publishers
LexisNexis Butterworths, the
express purpose of which is “to
ensure that there continues to be
made available to the Society’s
members and the legal
profession in Scotland a range of
books and publications on Scots
law and legal practice and related
subjects.”
The Society and LexisNexis
Butterworths would welcome
suggested book topics and authors
willing to write under the joint
books programme. All suggestions
should be sent to: Jennifer Blair, List
Development Manager, LexisNexis
Butterworths, 4 Hill Street,
Edinburgh EH2 3JZ or DX ED 211
or email Jennifer at
jennifer.blair@lexisnexis.co.uk
46 :
Mediation Conference success
The first Scottish Mediation
Conference took place in Stirling
on 12 September. An impressive
range of delegates attended from
a variety of backgrounds and from
a wide geographical spread.
The Scottish Mediation Network
is to be congratulated for
arranging the event, which was
attended by a delegation from
MACRO, the Maryland based
organisation by whom the Scottish
Consumer Council’s study trip in
February had been hosted. Chief
Judge Bell, whose drive and
influence has been instrumental in
the development of the process in
that State, headed the delegation
and spoke frankly about the
methodology they have used to
expand mediation as a response
to the reaction against the high
cost and long delays of litigating
business disputes. In addition,
delegates came from throughout
the UK, bringing their experiences
in the process from places which
many regard as being more
advanced in the development of
mediation as part of the judicial
process than Scotland.
The Conference brought together
over 150 people from different
parts of the spectrum: opponents,
agnostics, sceptics, enthusiasts,
practising mediators (lawyer and
non-lawyer, “for profit” and “not
for profit”), advisers in mediation,
members of Rules Councils, the
legal profession and others with
an interest in or connection with
dispute resolution, in Scotland and
elsewhere.This mix allowed an
opportunity for discussion and
debate on a number of issues and
a consideration of the different
aspects of the process.
The most effective way of learning
about and understanding anything
new is through demonstration and
example, and the conference
provided an excellent opportunity
for demonstrations of the process
while the workshops allowed
deeper debate on particular
issues.
The response to the conference
from the delegates was generally
positive. I am sure there will still
be sceptics, but I would ask them
to “think flexibly” and not to
throw the spoon (sorry, another
sailing hazard!) out with the
washing up water by rejecting the
concept in its entirety.
It could be said that the Law
Society of Scotland was once
again ahead of the game when it
established the ACCORD service
in the mid-1990s as a register of
Accredited Mediators in addition
to the Family Law Mediators list. It
is unfortunate that the
development of mediation as a
means of dispute resolution has
been slower than anticipated with
the result that the service has
been allowed to diminish.
Hopefully, with the renewed
interest in this area, such a service
can be allowed to develop and
flourish.
David Preston,
Immediate Past President
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Page 47
Solicitors needed to change lives
Will Aid, the scheme
conceived by Oban
solicitor Graeme Pagan
which has raised millions
of pounds to improve
the lives of victims of
poverty and disease, is
running its next
campaign in November
2004 and is already
looking for solicitors
willing to sign up.
the scheme.
For that month, those
taking part will waive
their usual fee for
drawing up a basic will
or codicil, and suggest
instead that people make
a donation to Will Aid.
Each solicitor can choose
how many clients they
can accommodate under
In the last campaign in
autumn 2002, 1,800
solicitors all over the UK
raised nearly £500,000 in
donations and clients
pledged a further £3
million in legacies.
Donations are shared by
the seven leading
charities involved in the
scheme: ActionAid,
British Red Cross,
Christian Aid, Save the
Children UK, Sight Savers
International, SCIAF and
Trocaire.
Those interested should
telephone the Will Aid
campaign office on
01460 271178, or email
enquiries@willaid.org.uk.
Obituaries
JAMES ROBERTSON
SOUTAR (retired
solicitor), Dundee
On 21 May 2003, James
Robertson Soutar,
formerly partner and
latterly consultant of the
firm Alexander, Soutar &
Wilmot, Dundee
AGE: 87
Bill Adams 1919-2003: An Appreciation
Bill Adams was born in Leith,
the son of a Merchant Navy
captain. His father died when he
was still a young boy, and in his
early teens an accident led to
his sustaining a leg injury, which
resulted in his missing extended
periods at school. Despite that,
Bill left George Heriot’s with
sufficient qualifications to train
as a chartered accountant,
qualifying in 1945.
After a period in private
practice he joined the fledgling
Law Society of Scotland, which
had been founded in July 1949.
solicitors. It is a measure of Bill’s
character, his integrity and his
meticulous but fair-minded
approach to everything, that he
was respected and admired
wherever he went. In 1982, Bill
retired from the Law Society of
Scotland, in many senses one of
the founding fathers of that
important institution.
A bachelor all his life, Bill
maintained close contact with
Bunty, his sister living in the
south of England, becoming a
much loved and respected uncle
to his nieces and to his great
Often referred to affectionately as “The wee
man from the Law Society”, Bill travelled
the length and breadth of the country to
inspect accounts and advise solicitors
In 1951, the establishment of
the first set of Accounts Rules
for solicitors brought a whole
new area of responsibility, in
fulfilment of which Bill was to
become a kenspeckle figure in
the legal profession throughout
Scotland.
nieces and nephews. Quiet and
undemonstrative by nature, Bill
was nevertheless a kind and
generous man, caring and
thoughtful of all. His passing
leaves his family feeling a great
sense of loss but, equally, with
warm and happy memories.
Often referred to affectionately
as “The wee man from the Law
Society”, Bill travelled the length
and breadth of the country to
inspect accounts and advise
An elder of the Church of
Scotland for over 50 years, Bill
was a regular attender at
worship in Wardie until ill health
prevented him. He served the
Church with his characteristic
quiet but meticulous approach,
most notably as Treasurer during
the ministry of Thomas
Thomson. He is remembered
with affection and gratitude in
Wardie, not least for his warm
smile and ever-courteous
nature.
In latter days, as mobility
decreased Bill took great solace
in his lifelong love of books and
music. He was a very well read
man yet he never boasted of his
knowledge. He took genuine
delight in the written word and
read across a whole range of
genres. Never one to complain
or make a fuss, Bill bore the
trials of latter days with great
fortitude, supported by the love
of his family and the care of his
neighbours.
On 22 June, in the Royal Victoria
Hospital he passed quietly into
the presence of the God whom
he had worshipped and served
throughout his life. It is our
privilege to give thanks to God
for Bill’s life, which we
remember with honour and
great affection, and to commit
Bill into the peace and rest of
the company of heaven.
Reproduced, with permission, from
the Wardie Parish Church
Newsletter.
ADMITTED: 1946
CHRISTINE ANNE
CECELIA REDMILL,
Edinburgh
On 9 September 2003,
Christine Anne Cecelia
Redmill, employee of the
Procurator Fiscal Service,
Edinburgh.
AGE: 42
ADMITTED: 1991
GEORGE KENNETH
VALENTINE CLARKE
(retired solicitor), Corsica
On 9 November 2003,
George Kenneth Valentine
Clarke, formerly partner
of the firm W & J Burness,
WS, Edinburgh.
AGE: 80
ADMITTED: 1950
IAN MONTEATH
WILSON (retired
solicitor), Edinburgh
On 10 November 2003,
Ian Monteath Wilson,
formerly partner of the
firm Drummond,
Johnstone & Grosset and
latterly consultant of the
firm Drummond Cook &
Mackintosh, both St
Andrews.
AGE: 84
ADMITTED: 1949
: 47
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Page 48
FROM THE SOCIETY
Victims’ accounts of the impact of an offence are now being
tendered in court under a two year pilot scheme. GRAZIA
ROBERTSON of the Criminal Law Committee explains
Victims find a voice
Victim statement schemes
are now being piloted in
two areas, under the
framework set out in
section 14 of the Criminal
Justice (Scotland) Act 2003.
The aim is to encourage
greater participation of
victims of crime within the
criminal justice system.
Victims will have the
opportunity of explaining
in the statements, how the
particular crime has
affected them and can
describe the psychological,
physical and financial
impact of the crime.
The first pilot scheme, run
by Victim Information and
Advice, covers the Sheriff
and High Courts in
Edinburgh; the second, run
by the Crown Office and
Procurator Fiscal Service,
covers Ayr and Kilmarnock
Sheriff Courts and the
High Court on circuit in
Kilmarnock.The pilots will
run for two years and will
be evaluated during that
time.
All cases received by the
procurator fiscal after 25
November 2003 and
which have an identifiable
“victim” in terms of the
scheme will be sent a
victim statement pro forma
along with an explanatory
booklet.The most obvious
cases are all forms of
assault, thefts from the
person and housebreaking.
Where the original victim
48 :
has died the next of kin
will be able to complete a
victim statement.The form
can be completed by a
third party where victims
are unable to do so
themselves.
The accused’s solicitor or
the accused themselves will
be allowed access to the
victim statement, either
after a plea of guilty has
been tendered or a finding
of guilt has been made.
Once the statement has
been submitted, it cannot
be withdrawn, although it
may be updated with the
procurator fiscal’s
agreement.The statement
must be put before the
sheriff or judge after the
recording of a guilty plea
or after conviction.The
fiscal has no discretion in
this regard.The withdrawal
of the statement, for
example, cannot form part
of a negotiated plea.
The accused has the right
to challenge all or any of
the contents of the
statement. If a challenge is
made, the court will fix a
diet of proof to enable
evidence to be led in
support of the statement. It
is envisaged that this
evidence would normally
be oral evidence from the
victim, perhaps with
supporting documentation
or other witness testimony.
The legislation states that
the court “must have
regard” to the victim
statement but it remains a
matter of judicial discretion
what weight it will carry in
determining an appropriate
sentence. It is hoped that
allowing victims to
participate in the
sentencing process will
have a beneficial effect and
make them feel more
involved.
The victim will be made
aware that he or she must
not make any suggestions
about an appropriate
sentence, or comment
about any matters not
connected with the specific
difficulties of completing
and submitting the
statement within the time
available. Cases which
originate in a pilot scheme
area but are subsequently
transferred to other
jurisdictions for trial, will still
be subject to the victim
statement scheme.
As neither the victim
statement nor its contents
can be disclosed to the
defence before a finding of
guilt is recorded, the victim
cannot be precognosced as
to whether he or she has
made a victim statement
or what he or she has said
in that statement. However,
cover matters related to
the victim statement. At
the time of going to press,
the legal aid regulations
dealing with those cases
are not yet in place.
However, the current
thinking by the Scottish
Executive is that for any
adjourned diet required to
enable the solicitor to
consider the terms of the
statement, the usual
deferred sentence fee
would be charged. Where
the matter requires to
proceed to proof, the
normal trial day fee will
apply.
The Victim Statement
Steering Group will
continue to monitor the
progress of the pilot
scheme throughout its two
It is hoped that allowing victims to participate in
the sentencing process will have a beneficial
effect and make them feel more involved.
case. Where a statement
contains inappropriate
remarks or refers to a
charge which is not before
the court, the sheriff or
judge will be expected to
disregard them.The
statement cannot be
altered by any other
parties.
If the accused appears
from custody a short time
after arrest, and pleads
guilty at the first hearing,
the victim will not be
invited to make a victim
statement, due to the
once the statement is in
the hands of the defence
solicitor, it should be
treated in the same way as
a precognition.
In solemn cases where a
criminal legal aid certificate
exists, the defence solicitor
will be paid for work
carried out in accordance
with the victim statement
under that same certificate
on a time and line basis.
With regard to summary
criminal legal aid, there is
no funding currently built
into the fixed payment to
year duration.
The Law Society is
represented on the
Steering Group and the
Deans of Faculties involved
in the implementation of
the pilot schemes have
been kept informed as
matters have progressed.
Solicitors are invited to
make any comment on the
implementation of the
scheme, either direct to
their Deans of Faculty or
to the Society’s Criminal
Law Committee.
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Page 49
Scots Fiscal comes
out top at Harvard
Gillian More, a depute
in the procurator
fiscal’s office in
Edinburgh, has scored
a notable success on
taking part in trial
advocacy training
programmes in the
USA. Both at the
Harvard Teacher
Training Program in
March, and at the
National Institute for
Trial Advocacy
advanced program in
Colorado in July, she
impressed Program
Director John Baker
to the extent that he
is recommending to
other NITA teachers
and program
directors that she join
as a faculty member
for one or more of
the basic advocacy
programs next year.
According to his letter
of commendation,
Gillian “exhibited her
solid understanding of
what it means to be a
‘professional’. She
participated heartily
and strenuously in the
ethics session on
‘Truth-Telling and the
Trial Lawyer’. Her
unique perspective
from the legal
profession in Scotland
was well received by
the American
participants and
faculty”.
SPECIALIST ACCREDITATIONS
Agricultural
Family
Re-accreditation: ALASDAIR G
FOX, Anderson Strathern;
W P MENNIE, Grigor &
Young (both 1 October 2003)
MORAG FRASER,
Russel & Aitken;
EVA M COMRIE,
Comrie Pollock
(both 16 October 2003)
Child
JULIAN AITKEN, Aitkens
(27 October 2003)
Re-accreditation: EVA
COMRIE, Comrie Pollock; John
Fotheringham, Ross & Connel
Commercial leasing
Re-accreditation:
JOHN FOTHERINGHAM,
Ross & Connel;
CAROLINE SMITH,
Russel & Aitken
Re-accreditation:
DAVID BENNETT,
Bennett & Robertson
(3 October 2003)
Construction
Medical negligence
NEIL J KELLY, MacRoberts
(27 October 2003)
LORNA E KENNEDY, NHS
Scotland (3 October 2003)
Crofting
Re-accreditation: KEITH
GRAHAM, Scottish Land
Court (13 October 2003)
The November Council
meeting saw a wide-ranging
debate on the future of the
Law Society of Scotland’s PKI
encryption technology project,
Lawseal.The pilot, which
involved 100 participants from
firms around Scotland, proved
that the technology worked.
Council reviewed the pilot’s
results and post-pilot
evaluation, considering the
options for Lawseal, the
potential costs and the
commercial risks involved.
Reluctantly, Council determined
that there was unlikely to be
sufficient demand to launch the
product and decided to
conclude the project.
Vice President, Duncan Murray,
said: “The Society’s goal was to
provide a PKI solution to the
profession at a reasonable cost
which would be interoperable
with government agencies and
other stakeholders. Although
the technology was proven in
the pilot, Council were not
persuaded that the profession,
and consequently, clients’
interests would be served by
adding this financial
commitment at this stage.
“During the Lawseal pre-pilot
stage all indications were that
Scotland was rapidly heading
down the encryption
technology route.This was
reflected in legislation and
policy with the European
Directive on Electronic
Signatures, the Electronic
Communications Act 2000, the
Electronic Signature
Regulations 2002 and the
Modernising Government
agenda.”
Society Chief Executive,
Douglas Mill, said: “The Society
believed that practitioners
were likely to need access to
digital signatures and correctly
assessed that it was uniquely
placed to provide verification
of identity – crucial to the
integrity of any PKI.That
market need has simply not
materialised as yet.
“Until the demand for
encryption technology
increases and the opportunity
arises to use PKI with
government agencies and
other stakeholders, it is not
appropriate for the Society to
place a financial burden on its
members by promoting PKI
when there is no compelling
business case to do so.”
Insolvency
Re-accreditation:
LIONEL D MOST, Burness
(30 October 2003)
Re-accreditation: ALAN D
MACKAY, Lindsays
(27 October 2003);
JAMES ARNOTT, Simpson &
Marwick (3 November 2003)
Lawseal concludes
Personal injury
NICHOLAS S GORDON,
John Henderson & Sons;
ANGUS LOGAN, Frazer
Coogans (both 6 October
2003); ROBERT T SWANNEY,
Digby Brown; DAVID S
McINTOSH, Balfour & Manson
(both 3 November 2003)
Annual
Conference
and Gala
Evening 2004
Readers of The Journal should just
have received the The Law Society
of Scotland’s Annual Conference
brochure.The event is to be held
at the SECC on 12 March 2004.
For further details contact:
vivienhenderson@lawscot.org.uk
(tel 0131 476 8205) or visit
http://www.lawscot.org.uk/pdfs/
AnnualConference2004.pdf
: 49
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Page 50
FROM THE SOCIETY
Round the houses
On 26 November 2003 the State
Opening of what is likely to be the
last full session of the current
Parliament took place. Her Majesty
announced 23 bills and seven draft
bills, many of which will have an
impact in Scotland, for example
bills on Child Trust Funds, the
creation of a new authority on
retention of human organs for
research, and the Planning and
Compulsory Purchase Bill which
will substantially abolish Crown
immunity under planning law.
The Queen announced some
major constitutional reforms.These
include a bill to reform the House
of Lords, which will remove the
remaining 92 hereditary peers and
put on a statutory foundation the
independent Appointments
Commission. It will be
remembered that earlier this year
the House of Commons
considered and rejected a number
of options for an elected or
appointed second chamber and
various combinations, whilst the
House of Lords voted
overwhelmingly for an appointed
chamber.
There will also be legislation to
abolish the post of Lord
Chancellor, and of high importance
to the legal profession, the creation
of a Supreme Court for the
United Kingdom separate from the
House of Lords and the Judicial
Committee of the Privy Council.
The Supreme Court will be
appointed through the medium of
its own independent statutory
Supreme Court Appointments
Commission.
The Society responded to the
Department of Constitutional
Affairs consultation paper on this
issue indicating its support for the
creation of a Supreme Court
subject, however, to care being
taken to ensure that the new
structure will not contravene the
Treaty of Union.
50 :
There will be legislation to abolish the post of Lord
Chancellor, and the creation of a Supreme Court for
the United Kingdom separate from the House of Lords
and the Judicial Committee of the Privy Council.
Bills with an impact
Amongst other legislation which
will have an impact in Scotland are
bills relating to same-sex
partnership; reform of asylum and
immigration law; and civil
contingencies.
It is expected that the first of these
will be subject to a Sewel motion
in the Scottish Parliament when
the bill is produced next year.The
Scottish Parliament’s Equal
Opportunities Committee has
already been taking evidence on
the Scottish Executive’s
consultation on this matter.The
DTI’s Women and Equality Unit
ran a similar consultation for
England and Wales, also touching
on reserved issues.
The Immigration and Asylum Bill, in
addition to abolishing the
Immigration Appeals Tribunal, seeks
to give the Office of the
Immigration Services
Commissioner further wideranging powers in relation to
solicitors and immigration
practitioners.The Society has made
representations to the Home
Office and Department for
Constitutional Affairs on these
matters.
There will also be an Employment
Relations Bill dealing with
workforce consultation, a
Companies Bill to strengthen
auditors’ powers, and amendment
to the Scotland Act 1998 to
remove the link between the
number of MSPs in the Scottish
Parliament and the number of
Scottish MPs at Westminster.
Lastly, the bill on civil contingencies
is intended to update both central
and local government and police
powers in the context of dealing
with emergencies.
Some draft bills will also have an
impact in Scotland, including the
Disabled People’s Rights, to
improve the rights of disabled
students and employees; Gambling;
Euro (Referendum); and a bill to
establish a National Identity Card
Register.
Changes on the home front
Meanwhile, among the bills
currently in progress in the Scottish
Parliament those of particular
significance to solicitors are
Vulnerable Witnesses; Anti-Social
Behaviour etc; and Criminal
Procedure (Amendment).
The Vulnerable Witnesses Bill, now
at stage 2, seeks to extend the
categories of witness who will be
eligible to give evidence in both
civil and criminal cases by using
special measures, such as screens
and CCTV. The Society supports
the principle of the Bill but has
concerns relating to the definition
of “vulnerability” (see October
Journal, pages 32-33) .The Society
will continue to monitor the
progress of the Bill.
The Criminal Procedure Bill seeks
to implement some of the
recommendations contained in
Lord Bonomy’s report, by
introducing greater certainty into
High Court proceedings, improving
communication between Crown
and defence and encouraging
earlier preparation of cases.The
Justice 1 Committee has been
designated the lead committee;
members of the Society’s Criminal
Law Committee were due to give
evidence on 3 December.
The Anti-Social Behaviour Bill,
introduced on 29 October, is in 13
Parts and deals with a range of
issues form the creation of
parenting orders to the extension
of anti-social behaviour orders to
under 16s.The Society’s Criminal
Law Committee is currently
considering the justice aspects of
the Bill and will give evidence to
the Justice 2 Committee in January.
The Society gave evidence to the
Environment and Rural
Development Committee of the
Scottish Parliament at the stage 1
deliberations of the Nature
Conservation (Scotland) Bill.This
seeks to reform the system of
establishing sites of special scientific
interest (SSSIs) and more
effectively tackle wildlife crime.The
Society’s main concerns relate to
ensuring that those with an interest
in any land to be subject to an SSSI
order have adequate appeals
provisions, compliant with the
principles of the European
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Page 51
Convention on Human Rights and
that the criminal provisions are
clearly expressed.
Competition on the EU front
In Europe the most significant
issues relating to the legal
profession surround competition
matters.
On 28 October the Competition
DG of the European Commission
held a hearing on competition and
regulation of liberal professions.
The hearing was wide-ranging –
covering lawyers, notaries,
engineers, pharmacists, accountants
and architects – and those
intervening included academics,
professionals, representatives of
consumer organisations and
competition authorities.There was
much concern about the
sufficiency of the Commission’s
research into professional rules,
which largely comprises one
economic report covering some
jurisdictions (although not
Scotland) and the responses to a
questionnaire issued in the spring
about the extent of professional
rules, their effect and their
justification.
Following the meeting,
Commissioner Monti indicated that
the Commission will be focusing
on the issues of restrictive
advertising rules, fixed fees and
multi-disciplinary practices.The
Commission expects most action
to be taken by professions
themselves reviewing their rules
and national competition
authorities enforcing EU law in this
area.There will be a Commission
report issued in the new year
indicating the Commission’s stance
on these three areas. Mr Monti did
rule out the possibility of taking an
EU-wide multi-profession approach
to regulation and considers that
competition between different
legal systems with different
regulatory regimes is healthy.
However, it seems clear that the
Commission will take action at
least against some of the most
restrictive rules.
Michael Clancy
Director, Parliamentary Liaison
In-House Lawyers at 30
The In-House Lawyers’ Group
marked its 30-year anniversary
with a symposium in Dundee
attended by around 100
members.
Addressing the meeting, Law
Society of Scotland Vice
President Duncan Murray said
that the Society “is proud to
support an active and vibrant InHouse Lawyers Group that has
developed from modest
beginnings in 1973 to today
when it comprises a quarter of
the profession”.The Council of
the Law Society has co-opted six
Group members to its ranks, and
invited the Chairman of the
Group, Janet Hood, onto the
Board.
She in turn praised the Society
as “extremely supportive ever
since 1973, allowing the Group
to flourish into an enthusiastic
and successful team that has
undoubtedly helped to improve
and strengthen the profession
overall”.
Speakers at the seminar included
employment specialist Malcolm
Mackay, licensing specialist John
Loudon, Joanna Boag-Thomson
and Alison White on data
protection, and Kevin Dunion,
the Information Commissioner
for Scotland.
NEWSROUND
Law Commissions report
on partnerships
The Scottish Law Commission
and the Law Commission have
published a joint Report on
Partnership Law (Scot Law Com
no 192; Law Com no 283), the
main thrust of which is to
encourage continuity of business
in place of the rule that a firm
ceases to exist on any change in
its membership.
The Commissions propose to
introduce the concept of
separate legal personality for
partnerships (and limited
partnerships) in England and
Wales and clarify that concept in
Scotland. However, partners
would continue to be personally
responsible for partnership
obligations and would owe a
duty of good faith towards the
partnership and the other
partners.
The policy has been to “think
small first”, on the basis that
small firms are less likely to have
properly drawn agreements.The
draft Bill which accompanies the
report provides a default code
that will apply unless the
partners choose to vary it,
dealing with matters such as the
sharing of profits and losses, how
differences are to be settled and
the financial entitlement of a
partner leaving. A partnership
liquidator should be able to
wind up a partnership where
this cannot be achieved without
dispute.
Leaping for meningitis –
volunteers wanted
Edinburgh solicitor Olivia Giles,
who lost her hands and feet
after contracting meningococcal
septicaemia and now dedicates
much of her time to raising
awareness of the disease, has
conceived a double fundraising
initiative to rise money for two
meningitis charities.
A 600 ticket ball at the EICC on
Leap Year Eve (28 February)
2004, supported by a host of
Scottish celebrities and
compered by radio star and
comedian Fred MacAulay, is
already sold out. However a 12
hour sponsored Strip the Willow
to run from noon that day still
needs volunteers for 10 minute
slots between noon and 7 pm.
For every £10 of sponsorship
that an individual raises, he or
she will receive a ticket to a free
prize draw that offers the
chance to win music equipment,
sports gear and vouchers.To
register to dance or obtain
sponsor sheets, visit
www.leapformeningitis.com or
phone 0901 270 6017. Online
donations can be made via
www.justgiving.com/leap.
An Environmental
Court for Scotland?
For some time there has been
concern that the existing
enforcement mechanisms for
Scotland’s environmental laws
are not providing proper
protection of our environment.
One answer could be the
establishment of a separate
environmental court both to
hear such cases and to
adjudicate on appeals and other
matters arising from soon-to-beintroduced international and
European law.
A conference, to be held in The
George Hotel, Edinburgh on
Friday 30 January 2004, will
address this issue.The
conference is sponsored by
Morton Fraser, Edinburgh and
speakers will include Richard
Macrory (author of the Macrory
Report), Sir Crispin Agnew QC,
Donald Reid and Richard
Burnett-Hall.
Details can be obtained from
Debbie Entwistle on 0131 247
1084 (email de@mortonfraser.com).
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professional briefing
CRIMINAL COURT
Allowing sexual questioning
Sheriff ANDREW LOTHIAN
wonders whether applications to
allow questioning on a complainer’s
sexual history are coming under
sufficiently rigorous scrutiny
It may be worth having a look now at
the progress of the Sexual Offences
(Procedure and Evidence) (Scotland)
Act 2002.This is the one which
provides for a lot of restrictions on
questioning in certain cases of a
sexual nature and then goes on to
deal with applications for relaxation
of these restrictions. (It is also the Act
which provides that an accused in
such cases may not conduct his
defence in person, with the court if
necessary appointing a lawyer, but
that need not detain us here.)
The restrictions referred to are
imposed by section 274 and the
question of relaxation in the following
section. Anecdotally, it would appear
that more applications for relaxation
are being sought than may be strictly
necessary. It is not surprising that this
should be the case as defenders will
want to err on the side of caution.
This is probably just as well, since the
last thing that one would want at the
trial would be an argument about
whether a particular question was
one about which prior application
should have been made.There are
three reported cases to which the
practitioner might like to refer. But
before coming to them it might be
worth mentioning that there is also
an unreported (at the moment)
decision, HMA v John Blyth, by Lord
Brodie in March 2003, which has
been found to be of assistance.
Cumming v HMA 2003 SCCR 261 is
an appeal from a preliminary diet.
The judge of first instance had
allowed some exceptions and refused
others, but as the Crown did not
oppose the appeal the value of the
case as precedent is perhaps limited.
In Kinnin v HMA 2003 SCCR 295 an
appeal from the sheriff was again not
opposed by the Crown and so was
granted without much discussion.This
state of affairs, which some
commentators have, tentatively, seen
as the Crown hardly fighting tooth
and nail for its witnesses and the
SCOTTISH SOLICITORS’ DISCIPLINE TRIBUNAL
James Ian
McAllister
Stewart Sloan
An Application was made
to the Tribunal by James
Ian McAllister Stewart
Sloan for an Order
restoring his name to the
Roll of Solicitors.The
Tribunal refused the
Application.
The Order striking Mr
Sloan’s name from the
Roll was made in respect
of his being found guilty of
professional misconduct in
respect of his
misappropriation of
clients’ funds and breach
of Rule 4(3)(b) of the
Solicitors (Scotland)
Accounts Rules 1989 and
Rules 4(1)(a), 6 and 12 of
the Solicitors (Scotland)
52 :
Accounts Rules 1992.The
Tribunal had to decide
whether or not the
Applicant had discharged
the onus on him to
displace the original
conclusion reached at the
time of striking off that he
was not a fit and proper
person to be a solicitor
and to show a change in
character, conduct and
suitability between the
time when he was struck
off the Roll and the time
of his Application.The
Tribunal considered that
in a case such as this
where the Applicant had
been struck off for a
criminal offence involving
dishonesty and
misappropriation of
clients’ funds for his own
personal use, the onus on
him to demonstrate that
his restoration to the Roll
would not damage the
reputation of the
profession as a whole was
a very heavy one.
The Applicant led the
evidence of a number of
witnesses who were
former clients who stated
that they would again be
clients and would trust
the Applicant.The Tribunal
however had to consider
the wider issue of
perception by members
of the public and the
profession who do not
personally know the
Applicant and the
circumstances of the
original finding of
misconduct.The question
for the Tribunal was not
whether the Applicant
had served his sentence
and paid his debt to
society but whether he
was a suitable person to
be on the Roll of
Solicitors.The Applicant
had been convicted of a
disgraceful act of
dishonesty and there had
been an objection to the
Applicant’s restoration
from the Law Society who
represent the legal
profession.The Tribunal
were not satisfied that
there had been a change
in the Applicant’s
character and were not
persuaded that the
Applicant had
demonstrated that he
could be trusted by the
public and the profession.
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Page 53
this month
court taking its lead from the attitude of
the parties rather than by independent
assessment, may mean that there will be
less restriction than had been
anticipated. I should emphasise that here
I am referring not just to the two cases
discussed but to what seems to be the
practice in cases that never reach
appeal, that is to say those in which an
application is made, the prosecution
does not oppose it and the judge of
first instance, taking the view that what
is required is an adjudication on the
parties’ submissions rather than an
independent assessment, allows the
application. I have also heard it
suggested that the effect of this may be
that the legislature will be uneasy if it
comes to believe that the Act, which is
intended to protect victims, who of
course have no independent voice as to
which questions they should answer, is
in effect not so doing because of the
actings of the prosecutors and the
courts.
275(1)(c), which requires the court to
be satisfied that “the probative value of
the evidence sought to be admitted or
elicited is significant and is likely to
outweigh any risk of prejudice to the
proper administration of justice arising
from its being admitted or elicited”. I
seem to recall that there is an
interesting discussion in Harry Street’s
“The Politics of the Judiciary” about
whether the court should interpret new
laws broadly, on the assumption that
they are intended to have an effect, or
narrowly, on the basis that the liberty of
the subject should not be restricted any
more than is necessary to comply with
the letter of the (new) law. As Lord
Hailsham remarked in the case of de
Rosa v Lord Advocate, in which I had
the honour to participate, Parliament
must be given credit for meaning what it
says.To the best of my recollection he
was chuckling at the time. I am afraid
that we have not heard the last of this
one.
Reference should also be had to the
case of Tant v HMA 2003 GWD 24686.This appeal against conviction
involved certain considerations which
we need not look at here but it also
involved a successful submission that the
trial judge had wrongly refused an
application for permission to ask the
complainer whether she accepted that
she had had consensual sexual
intercourse with the accused some
months previously.The judge of first
Finally, a couple of cases which are
unreported as at the time of writing but
were decided by the appeal court on
13 November 2003. Both deal with the
same point, namely whether evidence
led under section 259 of the 1995 Act,
that is to say hearsay evidence of a nonavailable witness, is compatible with
those rights established by ECHR art
6(3)(d) or of itself unfair.The cases are
Campbell v HMA and Hull v HMA.The
court, in the course of its
judgment, pointed out that while
regard has to be paid to
European jurisprudence, it must
be borne in mind that in many
cases the procedural and
evidential rules were rather
different to those prevailing here
and in particular certain
consequences flow from Scots
law’s requirements about corroboration.
The rule that an accused must have the
opportunity of examining witnesses is
not an absolute one, so that it will not
follow in every case that where hearsay
has been a necessary ingredient of the
Crown’s corroborated proof there has
been a violation of the rights under
6(3)(d).The outcome was not the same
in both cases and careful reading is
recommended as together they form
the last word, for the present anyway,
on this somewhat tricky point.
The rule that an accused
must have the opportunity
of examining witnesses is
not an absolute one
instance took the view that to allow the
application would be to allow the
defence to go into matters which the
new legislation specifically excluded.The
appeal court, however, took the view
that such questioning was material to
the accused’s defence. Accordingly, it
would seem that although the Act
seems to set out a list of checks and
balances which, if properly observed, will
inevitably lead to a correct solution, that
is far from being the case. In particular, it
is thought that continuing difficulty will
be encountered in applying section
ESSENTIAL
READING
These new Regulations will have a great
impact on the employment relationship
See Discrimination p54
CONTENTS
Criminal court
52
Discipline Tribunal
52
Employment
54
New Regulations tackle religion/belief and
sexual orientation discrimination
Agriculture
55
Agricultural Holdings (Scotland) Act 2003
comes into force
Incapacity
56
The effect of the Hague Convention on the
International Protection of Adults
Sport
57
How football clubs in financial trouble may
suffer sporting penalties
Website review
58
This month we focus on the websites of
solicitors’ property centres
Book reviews
59
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Page 54
EMPLOYMENT
Discrimination: widening the net
Religion or belief, and sexual orientation,
are the latest subjects to be tackled by
anti-discrimination legislation
Recently the House of Lords decided
that an officer expelled from the
armed forces on the grounds of
homosexuality, and homophobic
abuse directed at a teacher by pupils,
did not amount to discrimination
under UK legislation. All that has
changed with the Employment
Equality (Sexual Orientation)
Regulations 2003, and the
Employment Equality (Religion or
Belief) Regulations 2003, which came
into force on 1 and 2 December
2003 respectively.
Together these Regulations, for the
first time, prohibit direct and indirect
discrimination based on an individual’s
sexual orientation or their religion or
belief.
Religion or belief is defined as “any
religion, religious belief or similar
philosophical belief ”.This covers both
established religious beliefs such as
Judaism, Catholicism and Islam, and
non-belief. In deciding whether a
particular faith or tradition comes
within the definition, tribunals are
likely to take into account factors
such as whether there is a clear belief
system, perhaps governed by a
document such as the Bible or the
Koran, whether it involves collective
worship and whether it amounts to a
profound belief affecting a person’s
way of life or view of the world.
54 :
not, this will not prevent a claim of
discrimination. Similarly, if an employer
refuses employment because he
thinks the applicant is Muslim, when
in fact they are not, they will still be
able to claim under the Regulations.
Employees will also be protected
from discrimination because of the
sexual orientation, religion or belief of
someone with whom they associate.
For example, if an employee is
dismissed because it is known that
she carries out voluntary work for a
well known lesbian charity, this will
still amount to discrimination. Her
own sexual orientation is irrelevant in
these circumstances.
It is anticipated that these new
Regulations will have a great impact
on the employment relationship and
that it will not be long before the first
case relying on them comes before
the employment tribunal. Indeed,
even before the Regulations were
introduced, these issues have arisen: in
October 2003, the decision in Zia v
Killermont Polo Club (Scotland) Ltd
was issued by the employment
tribunal in Glasgow.
The definition of “sexual orientation”
will protect gay men and lesbians, as
well as heterosexuals and bisexuals of
both sexes, from discrimination on
the basis of their sexual orientation. It
will not, however, extend to sexual
preferences and practices, e.g. sadomasochism or paedophilia.
That case encompassed several heads
of claim including unfair dismissal,
breach of the Part Time Workers
(Prevention of Less Favourable
Treatment) Regulations 2000,
unlawful deduction from wages and
race discrimination.The applicant was
a Pakistani Muslim.Two of the
respondent’s directors were of Indian
origin, one being Sikh and the other
of Hindu religion. Another employee
of the respondent in a managerial
capacity was also of Indian ethnic
origin and Sikh religion.
Interestingly, both pieces of legislation
outlaw discrimination on the basis of
actual or perceived sexual orientation
or religion or belief. So, if a person is
believed by their employer to be a
homosexual and discriminated against
on this basis, when in fact they are
The applicant claimed that during the
course of his employment, the
respondent had treated him less
favourably because of his race,
country of origin, religion/culture and
ethnic origin as a Pakistani Muslim
compared to others who were
Indian Sikhs.
In their decision the tribunal,
commenting on a submission for the
applicant that “this was not a ‘white
versus black’ situation, but
discrimination by another person of
seemingly the same colour”, stated
that this “astute observation has
reminded us very poignantly, that in a
west of Scotland context, the
applicant’s case within the Asian
community is very similar to what, in
the local white community, might be a
very similar situation as regards
religious intolerance, or bigotry, or
sectarianism, as between the Catholic
and Protestant elements of the
Christian tradition”.
Although the tribunal could not
consider any grounds for
discrimination which came within the
confines of the Religion or Belief
Regulations, they were satisfied that
the applicant was subjected to less
favourable treatment on account of
his Pakistani ethnic origin, and
awarded the sum of £22,000 as
compensation for injury to feelings.
Had the Regulations been in force, it
is likely that the tribunal would have
found that the applicant was
discriminated against on the grounds
of his religion.
It is apparent therefore that
discrimination on the grounds of
religion or belief may occur within
groups of people who, as the
applicant’s representative described
“are seemingly of the same colour”,
and this is one of the areas in which a
much more thorough understanding
of our multicultural and diverse
society will become essential if we
are not to fall foul of the Regulations
and the positive effect they are
intended to have.
ACAS have helpfully issued two new
guides relative to both sets of
Regulations.These provide invaluable
good practice advice and summarise
the Regulations in a clear and
understandable manner.
Melanie Kerr,
Employment Practice Group Leader,
Harper Macleod
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Page 55
AGRICULTURE
Alasdair Fox outlines the swathe of rights just brought
into force under the Agricultural Holdings (Scotland) Act
New rights for farm tenants
The Agricultural Holdings (Scotland)
Act 2003 has become reality
following the Agricultural Holdings
(Scotland) Act 2003
(Commencement No 3,Transitional
and Savings Provisions) Order 2003,
made on 12 November.
This brings into force, from 27
November 2003, the following
provisions of the Act:
Part 1 – allowing 1991 Act tenancies
to be converted to limited duration
tenancies, abolishing section 2
cropping licences, modifying the law
re grazing and mowing leases and
introducing “short limited duration
tenancies” (maximum of five years)
and “limited duration tenancies” (not
less than 15 years).
Part 3 – conferring on tenants the
right to diversify into non-agricultural
activities which do not lessen
amenity, or prejudice the use of the
land for agricultural purposes, are not
detrimental to sound estate
management and do not cause the
landlord undue hardship.
Part 4 – modifying the law on
compensation. Chapter 1 abolishes
agreements for writing down
compensation and brings in new
provisions where grant aid is made
to a tenant. Chapter 2 removes the
upper limit (two years’ rent) on
compensation for disturbance and
introduces compensation for
diversification (including provision
that, if diversification reduces the
value of land, the landlord is entitled
to compensation from the tenant).
Chapter 3 covers compensation
following compulsory acquisition and
Chapter 4 allows the landlord and
tenant to enter into an agreement
whereby, on the tenant quitting the
holding, he will share in the uplift
between tenanted and vacant
possession values.
Part 5 – introducing miscellaneous
amendments to the 1991 Act, the
most important of which outlaw
future post-lease agreements; and
permit tenants to opt out of existing
post-lease agreements following rent
review, to obtain Land Court orders
permitting withholding of rent while
landlords fulfil obligations in relation
to fixed equipment, to reside off the
holding, to assign the lease to their
intestate heirs, and to carry out
certain conservation activities
without being guilty of bad
husbandry.
Part 6 (so far as not already in force)
– allowing a partner in a partnership
(not just a limited partnership) to
claim security of tenure in his own
right where another partner, being
the landlord or an associate of the
landlord or a partnership or
company in which the landlord has
an interest, dissolves the partnership;
and
Part 7 – giving the Land Court
primary jurisdiction in dispute
resolution re agricultural holdings.
These provisions have, of course,
been well trailed and I have,
purposely, only skipped through
them, picking out the most
important. What is said above is not,
therefore, comprehensive. I will, in
future articles, go into various
provisions of the Act in more detail.
Part 2 of the Act, the tenant’s preemptive right to buy, has not,
however, been introduced but is
expected to come into operation
next spring. Nevertheless, Part 2 has
not escaped attention in the Order,
which brings into force provisions
enabling Ministers (a) to prescribe
forms for tenants’ notices of interest
and landlords’ (or heritable
creditors’) notices of intention to
transfer land; (b) to issue guidance in
relation to valuation; and (c) to make
further provisions in connection with
the appointment of valuers and
valuations.
The Order also brings into force
those subsections which permit
Ministers to modify the transfers
which do not give rise to right to buy
and to define what is to be regarded
as “action… with a view to a transfer
of land”. So all those ingenious
schemes we have been working on,
with a view to defeating right to buy,
may yet prove ineffective!
Finally, the Order makes important
transitional and saving provisions
relative to arrangements which have
been put in place, or proceedings
which have been commenced, under
the old law but which will not be
possible now that the Act is
operating, namely:
section 2 licences and grazing
leases in effect on 27 November
2003 are continued until their expiry;
interdict proceedings by a landlord
to prevent a tenant disposing of
produce or practising a system of
cropping raised before 27 November
2003 may be continued;
a record made before that date by
a person appointed by Scottish
Ministers is deemed to be a record
made in terms of the 2003 Act;
notices to quit issued by landlords
and notices of intention to quit
issued by tenants before 27
November remain effective, but, in
the case of notices to quit only
where the landlord has already
applied to the Land Court for
consent;
where a 1991 Act tenancy has
terminated before 27 November
2003, compensation is to be dealt
with in terms of the 1991 Act;
arbitrations commenced before
the due date fall to be determined
under Schedule 7 to the 1991 Act;
and sheep stock valuations already
commenced are to be determined in
accordance with the old rules.
Alasdair G Fox,
Anderson Strathern WS
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Page 56
INCAPACITY
LOUISE MILLER of the Scottish Executive Justice
Department explains how Scotland is leading the way
in bringing an international dimension to protecting
adults with incapacity
Protection sans frontieres
On 4 November 2003 the Scottish
Deputy Justice Minister Hugh Henry
signed the UK’s instrument of
ratification of the Hague Convention
on the International Protection of
Adults.This was accompanied by a
declaration that the ratification would
extend to Scotland only. (The full
text of the Convention is available on
the website of the Hague
Conference on Private International
Law: www.hcch.net.)
Safeguarding vulnerable adults
The Convention contains rules on
jurisdiction, applicable law, and
recognition and enforcement of
judgments in civil cases involving
protective measures for adults with
incapacity.
Jurisdiction is generally conferred on
the courts of the country where the
adult is habitually resident.The courts
of the country of which he or she is
a national also have jurisdiction,
where they consider they are better
placed to protect the adult. However,
their jurisdiction is not to be
exercised without first informing the
authorities of the habitual residence,
and ceases to apply once those
authorities confirm that protective
measures have already been taken,
that their courts have decided against
such measures, or that proceedings
are pending.There is a jurisdiction
based on presence in cases of
urgency, and another based on
location of property in relation to
which measures are required.The
Convention contains a special rule
for refugees and the internationally
displaced, allowing the courts of the
country of refuge to adjudicate.
56 :
The applicable law is normally to be
the law of the forum, although there
is a discretion to take into
consideration the law of another
country with which the situation has
a substantial connection.The law
applicable to the validity and
interpretation of a power of attorney
or similar document is to be the law
of the adult’s habitual residence at
the time of granting, but there is
power to choose an alternative in
writing.The permissible alternatives
are the law of the nationality, of a
former habitual residence or of the
place where relevant property is
located.
Protective measures taken in one
Contracting State will be recognised
by operation of law in all other
Contracting States. Recognition may
be denied only on limited grounds
such as public policy, absence of
jurisdiction and unreasonable refusal
to hear the adult, in violation of
fundamental principles of procedure
in the requested state. Each
Contracting State must provide a
simple means of registration of
foreign protective measures for
enforcement. In Scotland, it is
intended that this will be done by
summary application to the sheriff
court, with the measure then being
registered by the Office of the Public
Guardian.
A Scottish first
As populations age and societies
become increasingly globalised, the
need for a comprehensive worldwide
instrument to protect vulnerable
adults has never been greater.The
Scottish legal system has been
amongst the earliest to respond to
this need.The Diplomatic Special
Commission in The Hague which
completed the negotiations on the
new Convention was chaired by our
own Professor Eric Clive.The
Scottish Parliament passed the Adults
with Incapacity (Scotland) Act 2000,
containing provisions to implement
the Convention (section 85 and
Schedule 3), only seven months
afterwards – possibly a record
reaction time where an international
instrument is concerned.The UK has
now become the first state to ratify
it, and for the first time has made use
of the so-called “federal states
clause” to do so for Scotland only.
This clause (article 55 of the Adults
Convention, and now standard in
Hague Conventions) permits states
containing territorial units with
different systems of law in relation to
matters covered by a Convention to
ratify selectively for certain of those
units.The remaining UK jurisdictions
are continuing to work towards
implementation of the Convention.
The Convention will come into force
three months after the third
ratification. In the meantime, the
Scottish Executive is happy to
respond to requests for information.
These should be sent to:
Louise Miller/Laura Mulheron,
Scottish Executive Justice
Department, 2nd Floor West, St
Andrew’s House, Regent Road,
Edinburgh EH1 3DG;
tel 0131 244 4823/4829;
fax: 0131 244 4848; email:
Louise.Miller@scotland.gsi.gov.uk or
Laura.Mulheron@scotland.gsi.gov.uk
•Journal_12-03
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Page 57
SPORT
Football’s financial red card
Football’s governing bodies are claiming the power to
impose severe penalties on insolvent clubs
With the satellite television
revolution of the 1990s, money
poured into the game of football in
the UK at exorbitant levels.The
spending of clubs both in Scotland
and in England reflected this
newfound wealth.To some extent, in
England’s Premiership (“FAPL”)
spending has continued with
successive television deals increasing
in value (although it should be noted
that the latest deal recently
negotiated between the FAPL and
BskyB, is under scrutiny from the EC
Competition Commission and is
likely to be found to be anticompetitive). In Scotland and the
lower divisions of England, spending
has been curtailed.There have been
a number of well-publicised financial
difficulties encountered by sizable and
well known football clubs.
Notwithstanding the Premiership’s
wealth, Leeds FC is facing
administration. Chelsea FC, before
being bought by Roman
Abramonvich, had debt in excess of
£100 million and was reportedly
close to taking protective measures.
When ITV Digital collapsed, a
number of Nationwide Division 1
English football clubs were placed
into administration. In Scotland,
Motherwell FC has been under the
management of an interim
administrator for over 18 months
and is only recently beginning to
show signs of coming out of
administration. Most recently, Dundee
FC called in administrators when a
crippling financial policy, with an
overspend of £100,000 per week,
saw debts rise to an unbearable level
of around £20 million.
The law governing insolvency for
businesses both north and south of
the border is largely the same,
emanating from the Insolvency Act
1986.The rules that supplement the
Act differ in Scotland and England
but are largely the same. In the
context of the business of football,
these laws and rules of procedure
are only part of the picture. Football
clubs contemplating administration
must also consider the relevant
sporting consequences of such steps.
Each club in membership of a league
in Scotland and England must abide
by the articles of their football
association, being the Scottish
Football Association (“SFA”) and
Football Association (“FA”)
respectively. Also, rules governing the
membership of particular leagues
exist and must be observed. Both
the Scottish Premier League (“SPL”)
and the FAPL have rules of
membership.
The rules of the SFA dictate that if a
club becomes unable to pay its debts
or has liabilities in excess of its assets,
the club’s membership of the
association may be suspended or
terminated.The rules of the SPL
contain a similar provision. Fiscal
policy has also been given
prominence in the SFA National
Licensing Procedures. Shortly to be a
mandatory requirement, each club
will have to satisfy various criteria,
including that it is solvent and can
trade for the full season, to obtain a
licence. If a club does not have a
licence, it will not be permitted to
play any fixtures.
In England, the position is similar in
the divisions below FAPL, whereby
the Football League, which
administrates the divisions, has
approved new regulations forming an
“Insolvency Policy” commencing in
season 2004-05. In this policy,
sporting sanctions may be applied,
namely the deduction of up to 10
points automatically upon a club
entering administration, along with a
maximum time period of 18 months
in which a club may be permitted to
remain in administration before
membership of the league is
terminated.The theory behind the
policy is that if a football club can
shed its debts, it gains an advantage
over its competitors and “fair
competition” is eroded.The merits of
this argument are not apparent. In
every league in the world, clubs have
differing turnover, expenditure and
financial strength. Rangers FC for
example, have the largest debts in
Scottish football. If Motherwell FC
come out of administration and have
no debts, will this really impact upon
their “competitive” position
compared to this half of the Old
Firm?
Whether the Football League
Insolvency Policy will prove to be
successful in terms of “sporting
sanctions” and indeed followed in
other leagues and countries will be
interesting to observe. For example,
clubs will have a right to appeal
against a sporting sanction but only
on grounds of “force majeure”.
Indications of what “force majeure” is
include that the clubs’ insolvency has
been caused by events that are
deemed “unforeseeable” and
“unavoidable”.The test for each will
be interesting and no doubt develop.
The introduction of insolvency
policies in more associations and
leagues throughout Europe has
begun and will continue. Indeed,
irrespective of their merits, sporting
sanctions are likely to become
commonplace. By introducing such
policies as articles and/or rules to the
operation of associations and/or
leagues, sanctions will be enforceable
against clubs who have unacceptable
standards of financial management.
Certainly, indulgence for passion in
football cannot continue at the
expense of fiscal responsibility.
Bruce A Caldow,
Sports Practice Group, Harper Macleod
: 57
•Journal_12-03
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Page 58
This month the web review looks at
Solicitors’ Property Centres websites
WEBSITE
REVIEW
The 11 solicitors’
property centre websites
all enable the user to
search property for sale
by reference to criteria
such as area, price or
number of bedrooms.The
solicitors firms’ contact
details are listed and most
also have a brief guide to
buying and selling.
Scottish Solicitors
Property Centres
The web review column
is written by Iain A
Nisbet of Govan Law
Centre.
e: iain@absolvitor.co.uk
All of these links and
hundreds more can be
found at
www.absolvitor.com.
58 :
www.sspc.co.uk is the
main portal site for all the
SPCs across Scotland.The
site, which receives an
astonishing number of
hits, links to the various
centres through an attractive, yet simple, map interface. It is slightly confusing
because some centres
have more than one
office - thus it appears
that there are no fewer
than three Dumfrieses.
Clicking on certain areas
displays the offices,
contact details and
hyperlinks to the nearest
SPCs, together with
recurrent links to the Law
Society of Scotland’s
website. Additionally, there
are email links to the Fort
William and Oban SPCs,
which have no websites.
Ease of Use: Site Design: Usefulness: Edinburgh Solicitors
Property Centre
The ESPC site
www.espc.co.uk
describes itself as “east
central Scotland’s largest
online property guide”. It
is the best of the sites (if
not the prettiest), having
most in the way of
additional features and
information. Interestingly,
the ESPC offers property
for sale in Central
Scotland,Yorkshire, the
Midlands, parts of Wales
and even overseas.
The site allows users to
register their own “ESPC
Homeline Account” which
notifies househunters
automatically when a
property matching their
specification is added to
the database. It also
provides a facility to save
previous property
searches, and allows
access to the ESPC’s
financial consultants. It has
data on sales and average
prices since 1997, and
consumers can also
download short but
useful guides on home
security and mortgages.
Ease of Use: Site Design: Usefulness: service didn’t look to be
working properly when I
visited. Despite the rise in
residential property prices
I found a perfectly
serviceable flat for offer
over £45 (sic)!
Ease of Use: Site Design: Usefulness: Aberdeen Solicitors
Property Centre
Aberdeen’s site
www.aspc.co.uk has an
excellent search function,
with many additional
features, allowing the user
to specify an area by
drawing the search
parameters out on a map
of Aberdeenshire.The
househunter can also
specify which floor on a
block of flats they are
comfortable with and
whether they are looking
for central heating or a
garden, or a garage.The
site will automatically rerun users’ registered
searches on a daily basis,
e-mailing the searcher
with any new results.
Ease of Use: Site Design: Usefulness: Perthshire Solicitors
Property Centre
Solicitors Property
Centre Moray
The SPC Moray site
www.spcmoray.com is
noted due to its smooth,
clean design and its useful
interactive map of
solicitors in the area.The
site is easy to navigate,
although one of the fields
in the property matching
www.pspc.co.uk has
many of the additional
search features of the
ASPC and also carries a
section providing legal
advice.This is fairly
rudimentary, amounting
essentially to “be sure to
see a solicitor” – excellent
advice, of course.
However, the stand-out
feature of this site is the
nifty Flash introduction.
Normally this sort of
thing is annoying and
intrusive but it is well
presented and was the
only site which induced
me to read about the
ideas behind SPCs.
Ease of Use: Site Design: Usefulness: The Scottish Borders
Solicitors Property
Centre
The final site I will
consider in detail,
www.bspcbricks.co.uk
carries a great set of local
links, organised as a
services directory which
will be useful to clients
and solicitors alike.The
search function does
much the same as the
previous sites, but
manages to look much
prettier than any of the
others (although there is
no capability to download
property schedules).
Ease of Use: Site Design: Usefulness: The other solicitors
property centre websites
can be found at:
Dumfries & Galloway:
www.dgspc.co.uk
Fife and Kinross:
www.f-kspc.co.uk
Glasgow:
www.gspc.co.uk
Highland:
www.hspc.co.uk
North East:
www.nespc.com
Tayside:
www.tspc.co.uk
•Journal_12-03
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4:33 pm
Page 59
Goff & Jones:
The Law
of Restitution
AUTHOR:
GARETH JONES
PUBLISHER:
SWEET & MAXWELL
ISBN: 0421 82820 X
PRICE: £225
This is the sixth edition of
the book which may be
said to have initiated the
English acceptance of the
principle of unjust
enrichment as the basis of
the law of restitution. The
first edition appeared in
1966, and the first-named
author went on to
become Lord Goff of
Chieveley and to play an
important role in
translating the arguments
of the book into positive
law.The second-named
author, Professor Gareth
Jones of Cambridge, now
also in retirement, has
been solely responsible for
this and the two previous
editions.The onerous
nature of this task can be
seen from the increasingly
short intervals between
editions, this one appearing
a mere four years after the
last. With the law of
restitution seeming to have
reached some sort of
stability after a turbulent
decade, it may be that this
latest edition is some sort
of swansong. If so, it is a
monument to the impact
which text writing of this
quality can have on the
development of the law.
Despite its acceptance of
the unjust enrichment
principle, English law
remains very different from
Scots enrichment law. Is
Goff & Jones of more than
comparative interest for
the Scots lawyer, therefore?
English law has had its
influences on Scots
enrichment law, some of
them not for the good; but
it may be doubted
whether one of our own
great cases of the 1990s,
Morgan Guaranty v
Lothian Regional Council
1995 SC 151 would have
been decided as it was
without Woolwich Building
Society v Inland Revenue
[1993] AC 70, while in the
other such case, Shilliday v
Smith 1998 SC 725, Lord
President Rodger indicated
the importance he
attached to Professor
Peter Birks’ work on
English law. Among the
important new English
cases discussed in detail in
this edition, Royal Bank of
Scotland v Etridge [2002]
2 AC 773 (undue influence
and spousal guarantees)
has been debated in the
Scottish courts, although (it
should be stressed) not
accepted. On the other
hand, Attorney General v
Blake [2001] 1 AC 268
(restitutionary damages for
breach of contract) has so
far attracted only academic
interest in Scotland, while
arguably in Kleinwort
Benson [1999] 2 AC 349
(mistake of law bar to
recovery abolished) the
significance is the influence
of Scots law on the
development of English
law, rather than the other
way around.
This leads on, however, to
the point that of Scottish
decisions, a cursory search
of the Table of Cases
revealed only Cantiere San
Rocco v Clyde Shipbuilding
& Engineering Co 1923 SC
(HL) 105, Esso Petroleum
v Hall Russell 1988 SLT
874 (HL) and Caledonia
North Sea v British
Telecommunications 2002
SLT 278 (HL) (in the latter
two of which it was
accepted that Scots and
English law were the
same). While citation and
discussion of Scottish cases
is not to be looked for in a
detailed work on English
law, where Scottish
authority has been cited
and Scottish judges are
giving important speeches
in the development of
English law (e.g. Lord Hope
of Craighead in Kleinwort
Benson), one might expect
to see some reference to
that material. For example,
in Etridge Lord Clyde was
somewhat critical of the
English distinction between
“presumed” and “actual”
undue influence, not
received in Scotland when
the concept of undue
influence was transplanted
there in the 1870s. Again,
in Professor Jones’
discussion of the Blake
case, he follows the House
of Lords in not referring to
Teacher v Calder (1899) 1
F (HL) 39, although
previously in both England
and Scotland that decision
was thought to stand
against the recovery of a
contract-breaker’s profits
by the other party. In both
jurisdictions it would be
useful to have a view on
whether Teacher remains
good authority.
This then is a book which
will probably not end up
on the shelves of most
Scottish practitioners, but
rather be confined to the
major libraries and the
specialist reader.The final
words, however, should be
ones of congratulation to
Professor Jones for a
marvellously sustained
achievement across nearly
40 years, and to express
the hope that a Scottish
equivalent will soon arise
in which the relevance of
the English authorities here
so masterfully gathered
and assessed will receive
appropriate treatment.
Professor Hector L
MacQueen,
BOOK
REVIEW
Please send any
suggestions on
future books to be
reviewed to:
Alistair Bonnington,
The Law School,
The Stair Building,
University of
Glasgow, G12 8QQ
e: alistair.bonnington
@bbc.co.uk
University of Edinburgh.
: 59
•Journal_12-03
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Page 60
property lawyer
New regulations on asbestos, in force in the spring,
require a careful look at who will become a dutyholder,
says the Law Society’s Conveyancing Committee
Asbestos safety
The new duty
The purpose of the Control
of Asbestos at Work Regulations
2002 is to protect workers from
exposure to asbestos.They include a
new duty to manage asbestos.The
new duty in the regulations seeks to
ensure that asbestos in premises will
be located, recorded and managed
and any persons who may disturb it
are informed of its location so they
can take suitable precautions.This
new duty has far reaching
implications for owners, landlords
and tenants of the property and
anyone involved in construction,
refurbishment and facilities
management both from a regulatory
and a contractual perspective.
The 2002 Regulations replace the
Control of Asbestos at Work
Regulations 1987 as amended. In
terms of regulation 4 of the new
regulations and the supporting
Approved Code of Practice (ACOP)
(both of which come into effect on
21 May 2004), if you own, occupy,
manage or have responsibility for
premises which may contain
asbestos you will either have:
a legal duty to manage the risk
from this material; or
a duty to co-operate with
whoever manages that risk – these
parties may include owners of the
buildings, occupiers, landlords,
managing agents, surveyors, subtenants and architects.
60 :
The
new duty
will require the
dutyholder to manage the risk from
asbestos by:
Finding out if there is asbestos in
the premises, the amount and what
condition it is in;
Presuming materials contain
asbestos, unless there is strong
evidence that they do not;
Making and keeping up to date a
record of the location and condition
of the asbestos-containing materials
or presumed asbestos-containing
materials in the premises;
Keeping a check on the condition
of asbestos and presumed asbestos
materials;
Assessing the risk from the
material;
Preparing a plan that sets out in
detail how the risk from this
material will be managed;
Taking steps needed to put the
plan into action;
Reviewing and monitoring the
plan and the arrangements made to
put it in place; and
Providing information on the
location and condition of the
material to anyone who is liable to
work on or disturb it.
The dutyholder
The “dutyholder” is defined in the
Control of
Asbestos at Work
Regulations 2002 as:
“(a) every person who has, by
virtue of a contract or tenancy, an
obligation of any extent in relation
to the maintenance or repair of
non-domestic premises or any
means of access thereto or egress
therefrom; or
“(b) in relation to any part of nondomestic premises where there is
no such contract or tenancy, every
person who has, to any extent,
control of that part of those nondomestic premises or any means of
access thereto or egress therefrom.
“And where there is more than one
dutyholder, the relative contribution
to be made by each such person in
complying with the requirements
will be determined by the nature
and extent of the maintenance and
repair obligations owed by that
person.”
The extent of the legal duty is
determined by the terms of the
tenancy agreement or contract that
applies, and in the absence of any
such agreement or where the
premises are unoccupied, on the
degree of control of the premises.
Various pieces of legal
documentation may have to be
reviewed to determine who the
dutyholder is – in most cases it will
be the lease, but it may also be
necessary to consider managing
•Journal_12-03
5/2/04
4:33 pm
agreements, PFI contacts, title
deeds and outsourcing
agreements.
Notwithstanding that the
statutory definition of the “dutyholder” specifically refers only to
“non-domestic premises”, the
Health and Safety Executive’s
Approved Code of Guidance
(paragraph 7) and the guidance
on the Health and Safety
Executive’s website state that the
duty to manage asbestos in
premises applies to all nondomestic premises, which includes
the common parts of domestic
premises.The ACOP states that
legal precedents have established
that common parts of flats are
not part of the private dwelling
and therefore are classed as nondomestic – the definition of
domestic premises in section 53
of the Health and Safety at Work
etc Act 1974 (the new 2002
Regulations are made by enabling
legislation in the 1974 Act) states
that:
Page 61
any duties on landlords in respect
of individual houses or flats.
Examples of common parts in
domestic property given in the
ACOP include: staircases, lifts,
shafts, gardens, yards, outhouses,
boilerhouses, foyers and corridors
in a block of flats.The ACOP
however states that rooms within
a private residence that are
shared by more than one
household, such as bathrooms,
kitchens etc in shared houses and
communal dining rooms and
lounges in sheltered
tenant with the information. A
joint plan would need to be
prepared and implemented. In
addition, the landlord and tenant
must ensure that information on
the location and condition of any
ACMs is given to anyone likely to
disturb the material.
Negotiating responsibility for
maintenance and repair of
premises will therefore be an
important consideration.
The owner/leaseholder may
transfer all or some of the
The landlord may retain
control of the common parts
of a block of offices while
the tenant in occupation is
responsible for the internal
parts of the premises they
occupy. In this situation the
tenant would have to identify
all accessible asbestos in the
areas of the premises they
are responsible for.
Domestic premises means
“premises occupied as a private
dwelling (including garden, yard,
garage, outhouse or other
appurtenance of such premises
which is not used in common by
the occupants of more than one
dwelling), and non-domestic
premises shall be construed
accordingly”.
The English case of Westminister
City Council v Select
Managements [1985] 1 All ER 897
held that premises which are not
in the exclusive occupation of the
occupants of a private dwelling,
such as lifts serving the common
parts of a block of flats, are nondomestic premises. Although this
is an English case the Health and
Safety at Work etc Act 1974 and
the Control of Asbestos at Work
Regulations 2002 apply in Great
Britain and as a result the case is
persuasive but not binding.
Clearly this is a significant issue
which will substantially increase
the number of dutyholders.The
type of premises covered will
therefore include the common
parts of housing developments,
purpose built blocks of flats and in
some cases conversions to flats,
but regulation 4 does not place
substance therein are safe and
present no risks to health
(asbestos that is fully contained,
e.g. between walls could be safe
and present no risks to health).
Both domestic and non-domestic
premises come within the ambit
of duty in the 1974 Act.The
obligation in the 1974 Act is
therefore all encompassing and
includes both the common parts
and the individual private
dwellings of domestic premises,
but the 1974 Act does not create
a specific obligation to manage the
accommodation, on the other
hand are not deemed to be
common parts.
An office block example
The landlord may retain control of
the common parts of a block of
offices while the tenant in
occupation is responsible for the
internal parts of the premises they
occupy. In this situation the tenant
would have to identify all
accessible asbestos-containing
materials (ACMs) and assess their
condition in the areas of the
premises they are responsible for.
The owner would have to do the
same for the remainder of the
premises and either forward all
the relevant information to the
tenant or alternatively carry out
the assessment for the whole
building and then provide the
responsibilities for repair and
maintenance to a managing agent
and the agent would then be
required to carry out the actions
in the same way as an owner.This
does not necessarily mean that
the owner has absolved himself of
his legal obligations. In addition, if
the terms of the tenancy are
altered substantially or if the
building is vacated then the
owner/landlord/tenant must make
sure that all relevant information is
passed to any new dutyholder.
The existing duty
There is currently a duty to
manage asbestos in buildings
under section 4 of the Health and
Safety at Work Act 1974 – this
Act places a duty on a party that
controls a building to ensure that
the premises and any plant or
asbestos through surveys and a
plan as detailed above.
There are also obligations on a
landlord of domestic premises
(including individual houses or
flats) under the Civic Government
(Scotland) Act 1982 - a landlord is
under a duty to take reasonable
care to ensure that the tenants
and other people are safe from
personal injury or disease caused
by defect in the state of premises.
The obligations in both the 1974
Act and the 1982 Act have been
in force for a considerable period
of time and they remain in force,
but the new specific asbestos
duties will be the focus of an
enforcement campaign by the
Health and Safety Executive.
Douglas A J Taylor
Maclay Murray & Spens
: 61
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Page 62
property lawyer
Housing Improvement Task Force
Preparations are advancing for the introduction of the
Single Survey pilot, as Linsey Lewin explains
The Single Survey Pilot
I refer to the previous Journal
articles and now write to advise
you about the further progress
being made by the HITF Single
Survey Steering Group, which has
held two meetings and will hold
further meetings throughout the
next few months.
You may recall that the pilot is to
take place in Greater Glasgow
North and West, Edinburgh
North and Leith, Greater Dundee
and Inverness and the
surrounding areas.These four
areas have been chosen because
they reflect a diversity of market
conditions, e.g. urban, rural, high
demand and low demand.The
pilot will run for at least eight
months and for up to a year if
necessary, i.e. if an insufficient
number of transactions is
generated within eight months.
Here is an overview of some
practical matters being discussed
relating to the operation of the
pilot.
The single survey report
The RICS has prepared a draft of
the single survey report and the
Scottish Executive has appointed
Professor Brian Sloan of Napier
University as an external assessor.
Professor Sloan will work with
Anthony Andrew, the Executive’s
Chief Estates Adviser to examine
the report developed by RICS
and to advise the Steering Group
on possible amendments and
Information from the Registers
turnaround times
The current average
turnaround times in working days from the
Registers of Scotland are as follows:
Sasine Writs
10 working days
with a maximum of 13 days for the latest County
Unattached Dealings with Whole*
18 working days
with a maximum of 36 days for the latest County
* An Unattached Dealing with Whole is a dealing which is not dependent
on the processing of a prior First Registration, Transfer of Part or Dealing
with Whole for its completion.
The published Agency turnaround times for the Land Register is an attempt
to capture the elapsed time that an application is in the Keeper’s hands and is
capable of being processed by his staff.The only period of time not included
in the turnaround time measurement is that time where a requisition has
been raised with the submitting agent.Turnaround times are calculated at the
point where the finished Land Certificate is despatched to the Agent.
For obvious reasons Saturdays and Sundays are not included
in the measurement taken.
The turnaround time in the Sasine Register is purely the elapsed time (once again
without Saturdays and Sundays), as writs which are withdrawn during the
recording process are excluded from the turnaround time calculation.
62 :
improvements.
There is still detailed work to be
done on the terms of
engagement under which the
surveyors will operate.The terms
of engagement require to be
clearly stated at the outset of the
transaction so that all parties privy
to the contents of the report will
be clear about what it covers and
who can rely on its contents.
There have also been discussions
about the need to ensure a legal
transfer of the surveyor’s liability
when the property is actually sold,
i.e. when the surveyor’s liability to
the seller for the contents of the
report passes to the purchaser.
The Executive is taking legal
advice about this matter and it is
hoped that the best way of
dealing with this will be
established shortly.
Project management plans
There are ongoing discussions
about the project management
plan. Obviously it is important to
have a management plan so that
the Executive can ensure that the
pilot operates to time, is effective
and produces the necessary
results for the evaluation.
The pilot is being run by
Communities Scotland and their
research team have now prepared
a brief for the pilot evaluation. A
number of research contractors
have been asked to express their
interest in tendering for this work
and some four or five companies
were believed to be issuing a
tender document by the end of
November.
It anticipated that the pilot will be
web based although there have
been discussions about whether
or not it is appropriate to have an
e-solution, since it has been
considered that this might present
a barrier to some professionals
and thus to some consumers
participating in the pilot. However,
it has also been acknowledged
that a web-based system is likely
to be less complicated and more
manageable than a paper system.
At the time of writing a final
decision about how this will be
progressed is yet to be taken.
It is obviously necessary to have
both quantitative and qualitative
assessments of information where
the single survey has impacted on
the behaviour of sellers,
prospective and actual buyers, the
professionals and lenders.The
results of the pilot are not to be
confined to how the “process” has
influenced behaviour but are also
to assess the impact of the
availability of greater information.
Obviously, as I am writing this, the
practical details of how the pilot
will actually operate have not
been finalised but the Steering
Group is well aware of the fact
that it is necessary to
communicate practical
information to the public and
profession in the pilot areas as
soon as possible. I have concerns
about the lack of detail available
at the moment but can assure
you that Stewart Brymer and I,
the Society’s members of the
Steering Group, have raised these
concerns and are pressing for the
details to be finalised as soon as
possible. When we know more I
will write to the individual firms in
The Society’s view is that these should be
piloted so that we can establish and iron out
any problems before PIPs are introduced.
•Journal_12-03
5/2/04
4:33 pm
Page 63
would ultimately be expected to
pay).There are obviously issues
around meeting the costs of
producing and distributing copies
particularly where there is a good
deal of interest in a property;
there is also an issue about
controlling/monitoring access to
the survey for a number of
reasons.These issues are going to
be further discussed at the next
Steering Group meeting, as we
perceive them to be vital to the
process.
It is anticipated that the Scottish Executive
will issue various press releases; a leaflet
or newsletter will be produced
the pilot areas to explain the
position.
Purchasers’ information packs
As I have previously mentioned, it
was broadly agreed at earlier
Steering Group meetings that the
PIP would follow on as a natural
consequence if the single survey
was a success, and the decision is
still to be taken about whether
and when to pilot PIPs.The
Society’s view is that these should
be piloted so that we can
establish and iron out any
problems before PIPs are
introduced.
Raising awareness
At the last Steering Group
meeting members reported their
views on the current state of
“awareness” of the relevant
professionals in the pilot areas
and commented on what action
could be taken and had already
been taken. It was agreed that a
communications strategy would
be necessary to ensure a
coordinated approach.The
Executive will be organising
meetings with the RICS and the
Law Society of Scotland etc in
order to further this.
It is anticipated that the Scottish
Executive will issue various press
releases, a leaflet or newsletter
will be produced for distribution
to the professionals in the pilot
areas and there will then be
regular updates linked to features
in the local press, property papers
and supplements and radio and
television.There will also be local
meetings for professionals
involving the Scottish Executive,
the Society and the RICS. It is
anticipated that the Solicitors’
Property Centres network will be
used to disseminate information
to the profession and public.
to update them and that we will
be visiting the pilot areas as soon
as possible after the New Year
once the fine detail of how the
pilot will operate is available.
Paying for survey copies and
distribution
At this moment there has been
general acceptance amongst the
Steering Group members that
access to the survey by
prospective buyers should ideally
be free (although the eventual
purchaser who uses the survey
I hope this gives you a flavour of
the discussions at the Steering
Group. I have indicated that
Stewart and I have concerns
about the timescale, the
practicalities of how the pilot will
operate and the practical and cost
implications for the SPCs and the
solicitors’ firms involved. We have
already had meetings with the
SPCs in the pilot areas and will be
meeting with them again shortly
for further discussions. If you have
any questions or concerns or
simply wish to make any
comments I would be happy to
hear from you.Your input is
important. Please email me at
linseylewin@lawscot.org.uk or
telephone me on 0131 476 8174.
Linsey J Lewin,
Secretary, Conveyancing Committee
By the time you read this you
should, if you are in the pilot
areas, have received a letter
detailing the position so far. I
anticipate that we will continue to
write to firms on a regular basis
: 63
•Journal_12-03
5/2/04
4:33 pm
Page 64
property lawyer
An update from the Registers on how to live with the new tax
SDLT: Registration
Requirements
The 1 December 2003 saw the
advent of Stamp Duty Land Tax
(SDLT). With effect from that
date, subject to the transitional
provisions outlined below, stamp
duty was abolished except in
relation to share transactions and
certain transactions relating to
partnerships.The registration
requirements of SDLT are very
different.This article advises on the
procedures solicitors must follow
to ensure that applications for
recording or registration in the
Land Register of Scotland, the
General Register of Sasines and
the Books of Council and Session
comply with the requirements in
the Finance Act 2003.
How does SDLT
affect transactions?
Unlike stamp duty, which is a
voluntary tax on deeds, SDLT is a
self-assessed compulsory tax on
chargeable land transactions
backed up by a wide range of
compliance powers. For the
purposes of the SDLT regime land
transactions fall into three
categories:
Those requiring completion of a
land transaction return.The return
must be submitted to the Inland
Revenue, who will provide a
Revenue certificate, the original of
which must accompany the
application for registration or
recording to which the land
transaction relates.
Those which do not require the
purchaser to submit a land
transaction return to the Inland
Revenue but which nonetheless
require the purchaser to complete
64 :
a self-certificate form certifying the
reason no land transaction return
is required.
Those that are exempt from SDLT
or fall outwith the definition of
land transactions in terms of the
Act.
Section 77 and schedule 3 set out
the rules for determining whether
a land transaction requires to be
notified to the Inland Revenue or
whether it is capable of selfcertification. Section 48(2) lists
those land transactions that are
exempt from SDLT.
Registration requirements
Section 79(1) places a duty on the
Keeper not to register, record or
otherwise reflect any document
effecting or evidencing a land
transaction, falling within either
category 1 or 2 above, in any of
the Registers maintained by him
unless a certificate as to
compliance with the Act
accompanies the application.The
Keeper will therefore reject any
application in respect of a land
transaction falling within categories
1 and 2 above, which is not
accompanied by an Inland
Revenue certificate or selfcertificate as appropriate.The
certificate will be returned once
the registration or recording
process is complete.
Land transactions falling within
category 3 require neither an
Inland Revenue certificate nor a
self-certificate.These include any
security interest (standard security,
discharge etc) or a licence to use
or occupy land. In addition the
Inland Revenue has advised that
saving notices introduced by the
Title Conditions (Scotland) Act
2003 will require neither
notification by way of a land
transaction return nor selfcertification.The one exception to
this is a section 19 agreement to
re-allot a real burden. A section 19
agreement will require to be
accompanied by a self-certificate
or, if consideration of £60,000 or
more passes, an Inland Revenue
certificate.
Transitional provisions
Schedule 19 details the
circumstances in which deeds
remain liable to stamp duty on or
after 1 December 2003. In
general, a transaction will not be
subject to SDLT unless its effective
date, generally the date of
completion of the contract, is on
or after that date. Section 121
provides that completion in
Scotland means, in the case of a
lease, when it is signed by the
parties or constituted by any
other means, or in relation to any
other transaction the settlement
of that transaction. Special
provisions apply where the
transaction is effected in
pursuance of a contract concluded
before 10 July 2003, or a contract
entered into and substantially
performed before 1 December
2003 but after 10 July 2003. If you
are in any doubt as to whether a
land transaction is liable for SDLT
or stamp duty you should contact
the Inland Revenue for advice.
Situations may arise after 1
December where a deed, which
on the face of it appears to be
subject to SDLT, is in fact subject
to stamp duty because of one of
the transitional provisions. In that
circumstance a covering note
should accompany the deed
explaining why the deed is not
subject to SDLT. A covering note
should be submitted in the
following circumstances: where the
deed is subject to stamp duty but
on the face of the deed the
effective date of the transaction is
on or after 1 December 2003; and
the deed itself has not been
examined by the Inland Revenue
(i.e. the deed contains a Finance
Act clause or reference to the
Stamp Duty (Exempt Instruments)
Regulations 1987).
Advice and guidance
General advice on SDLT can be
obtained from the Stamp Taxes
Enquiry Line on 0845 603 0135,
open 8.30 am to 5.00 pm Monday
to Friday, except Bank Holidays.
Copies of the land transaction
return and supplementary sheets
can be obtained from the Stamp
Taxes orderline on 0845 3021472.
The Inland Revenue does not
accept photocopies as the forms
contain a unique certificate
number.Their website
www.inlandrevenue.gov.uk/so also
offers assistance.The Keeper has
issued a Registers Update No 11
about SDLT, which includes
checklists on land transactions and
the submission of certificates –
see www.ros.gov.uk/updates.
Advice on the registration
requirements can be obtained
from either of the Keeper’s
Customer Service Centres in
Edinburgh or Glasgow (for contact
details see www.ros.gov.uk).
CORRECTION
The article on preserving superiors’ rights in the November
Journal unfortunately contained an error.The first paragraph
included the phrase “recording/registering such notices etc will
close on 27 November 2006”.The correct date is 27
November 2004.The Keeper regrets any inconvenience caused.
•Journal_12-03
5/2/04
4:33 pm
Page 65
•Journal_12-03
5/2/04
4:33 pm
Page 70
notifications
Entrance certificates issued during October/November 2003
ANDERSON, Barbara
Anne,
LLB(HONS), DipLP
ANDERSON, Lynne,
LLB(HONS), DipLP
BAIRNER, Jennifer Fiona,
LLB(HONS), DipLP
BARRON, Claudia Ruth,
LLB(HONS), DipLP
BARRON, Emma Jane,
LLB(HONS), DipLP
BASHIR, Imran,
LLB(HONS), DipLP
CROCKETT, Laura,
LLB(HONS), DipLP
HOUSTON, Sarah,
LLB(HONS), DipLP
McGUIRE, Mark,
LLB(HONS), DipLP
DI PAOLA, David John,
LLB(HONS), DipLP
INGLE, Cassie Louise,
LLB(HONS), DipLP
McKAY, Jennifer Reid,
LLB(HONS), DipLP
DICKSON, Susan,
LLB(HONS), DipLP
IRWIN, Keith Brian,
MA(HONS), LLB, DipLP
DILBER, Rupneet Kaur,
LLB(HONS), DipLP
JEFFERIES, Douglas
Graham Buchanan,
LLB(HONS), DipLP
MACKENZIE, Michael
Scott,
LLB(HONS), DipLP
EDGAR, Barry,
LLB(HONS), DipLP
EMMERSON, Keith Robert,
LLB(HONS), DipLP,
FAQIR, Shabnam,
LLB(HONS), DipLP
BLACK, Susan,
LLB(HONS), DipLP
BONNAR, Anthony Joseph,
BA(HONS), LLB, DipLP
FORBES, Helen,
LLB, DipLP
KANEY, Helen Mary,
BDS, LLB, DipLP
PETRUSEV, Juliet Claire,
LLB(HONS), DipLP
KAY, Moira Alison,
LLB(HONS), DipLP
McSHANE, Karina,
LLB(HONS), DipLP
PITTENDREIGH,
Dawn Michele,
LLB(HONS), DipLP
KAYE, Darrell Elizabeth,
LLB(HONS), DipLP
MACARI, Martin Ricardo,
BEng(HONS), LLB, DipLP
REID, John Francis,
BA, LLB, DipLP
LAFFERTY,
Michelle Martine,
LLB(HONS), DipLP
MAHON, Louise Antonia,
MA, LLB, DipLP
REID, Sonya Leigh,
LLB(HONS), DipLP
MASON, Patrick Hugh,
LLB(HONS), DipLP
ROARTY, Mhairi-Clare,
LLB(HONS), DipLP
MATHESON, Julie
Margaret,
LLB(HONS), DipLP
ROBBIE, Neil Lindsay,
LLB(HONS), DipLP
FRASER, Stuart Blair,
LLB(HONS), DipLP
BROWN, Jonathan Gregor,
LLB(HONS), DipLP
FULTON, Hayley Louise,
LLB(HONS), DipLP
CARGILL, Kirsty Elizabeth,
LLB(HONS), DipLP
GALLACHER, Judith Hilary,
LLB(HONS), DipLP
LINEHAN,
Jennifer Margaret,
CHALMERS, Philip Hugh,
LLB(HONS), DipLP
GIBB, Lindsey,
LLB(HONS), DipLP
LONGMUIR, Claire Eileen,
LLB(HONS), DipLP
CLUBLEY,
Graeme Matheson,
LLB(HONS), DipLP
GIBB, Roderick Bruce,
LLB(HONS), DipLP
McCARTHY, Frances,
LLB(HONS), DipLP
GILSON, Glen Douglas,
LLB(HONS), DipLP
McCLUSKIE, Peter Mark,
LLB(HONS), DipLP
GORMAN, Laura Irene,
LLB(HONS), DipLP
McCUBBIN, Joanne Lynsey,
LLB(HONS), DipLP
HEALING, Sarah Louise,
LLB(HONS), DipLP
McDONNELL, Zoe,
LLB(HONS), DipLP
HIGGINS, Lorna Elaine,
McGILL, Laura Gillian,
LLB(HONS), DipLP
70 :
NOBBS, Jennifer Susan,
LLB(HONS), DipLP
MACPHERSON, Ruaraidh
Alexander Paul,
JONES, Kate Emily,
BORTHWICK, Nicola Joy,
LLB(HONS), DipLP
COOPER, Kirsty Isla,
LLB(HONS), DipLP
NICOLL, Greg Bruce,
LLB(HONS), DipLP
PATERSON,
Gemma Catherine,
LLB(HONS), DipLP
FORMAN,
Robert Andrew,
LLB(HONS), DipLP
COONEY, Ann Frances,
LLB(HONS), DipLP
NELSON, Ewan,
LLB(HONS), DipLP
McLEAN,Tamsyn
Nancy Cull,
LLB(HONS), DipLP
BOOKER, Rachel Mary,
LLB(HONS), DipLP
COCKBURN,
Louise Evelyn,
LLB(HONS), DipLP
LLB, DipLP
LATTA, Fraser Paterson,
LLB(HONS), DipLP
MATIER, Isla Ruth,
LLB(HONS), DipLP
MILLER, Alan Matthew,
LLB(HONS), DipLP
ROONEY, Lynsey Anne,
BA, LLB, DipLP
ROSS, Alison Elizabeth,
MORE, James Philip,
BN, LLB, DipLP
RUSSELL, Caroline
Louise Margaret,
LLB(HONS), DipLP
MORRISON, Mhairi Alison,
LLB(HONS), DipLP
RUST, Jason Geoffrey,
LLB(HONS), DipLP
MULLEN, Aaron,
LLB(HONS), DipLP
SAJID, Naeema Yaqoob,
LLB, DipLP
MURRAY, Graham Neil,
LLB(HONS), DipLP
SCAIFE, Lindy-Rose,
LLB(HONS), DipLP
MYLES, John Rowan,
SCOTT, Elizabeth Jane,
•Journal_12-03
5/2/04
4:33 pm
Page 71
LLB(HONS), DipLP
LLB(HONS), DipLP
LLB(HONS), DipLP
SCOTT, Hazel,
LLB(HONS), DipLP
STRATFORD, Lynne,
LLB(HONS), DipLP
SEMPLE,
Claire Victoria,
LLB(HONS), DipLP
TAYLOR, Julia Louise,
LLB(HONS), DipLP
WATSON,
Shona Mary,
LLB(HONS), DipLP
SHEAR, Sharon Elaine,
LLB, DipLP
SMITH, Peter Richard,
BLE, LLB, DipLP
SPENCER, Emma
Louise Ann,
LLB(HONS), DipLP
STEWART, Barbara
Mary Isabel,
LLB(HONS), DipLP
STEWART,
Joseph Alan,
THEODOSSIOU,
Maria Adamandia,
LLB(HONS), DipLP
TULLOCH,
Sheila Mary
LLB(HONS), DipLP
TWEEDIE,
Iain William,
LLB, DipLP
URQUHART,
Lindsay Anne,
LLB(HONS), DipLP
WALKER,Tricia Lyn,
WELSH, Lisa Jayne,
LLB(HONS), DipLP
WHELTON,
Craig Michael,
LLB(HONS), DipLP
WHITEHEAD,
Jennifer Leigh,
LLB(HONS), DipLP
WILSON,
Gina Mary,
LLB(HONS), DipLP
WILSON,
Joanne Lesley,
LLB(HONS), DipLP
Applications
for admission October/November 2003
ABERDEIN,
Robert Douglas,
LLB(HONS), DipLP
LLB(HONS), DipLP,
LLM
MELDRUM,William,
LLB(HONS), DipLP
AUCKBARALLEE,
Shareen Bibi,
LLB(HONS), DipLP
FAIRBAIRN,
Struan Robertson,
MA(HONS), LLB,
DipLP
MILLIGAN,
Colin James,
LLB(HONS), DipLP
BARRON,
Paul Thomas,
LLB(HONS), DipLP
GIBBONS,
Karen Louise,
LLB(HONS), DipLP
CAMPBELL,
Colin Matthew,
BD(HONS),
LLB(HONS), DipLP
IRVINE, Jeya
Lakchumy,
LLB(HONS), LLM,
DipLP
CAMPBELL,
Lucy Anna,
LLB(HONS), DipLP
KENNEDY,
Robin Alastair,
BA, LLB, DipLP
CASEY, Juliette Mary,
BCL(HONS),
LLB(HONS), DipLP,
PhD
LANG,
Catriona Sarah,
LLB(HONS), DipLP
CHALMERS,
Christine Wilson,
LLB(HONS), DipLP
DONACHIE, Kathryn,
LLB(HONS), DipLP
DUNCAN,
Fiona Elizabeth,
LLB(HONS), DipLP
EVANS, Angus Colin,
NIMMO, Nicholas,
LLB(HONS), DipLP
OGILVIE,
Charles Stephen,
LLB(HONS), DipLP
PATERSON,
Lesley Ann,
LLB(HONS), DipLP
REYNOLDS, Donna,
LLB(HONS), DipLP
RIGBY, Peter Michael,
LLB(HONS), DipLP
SHIELDS, Debra Mary,
LLB(HONS), DipLP
MACLEOD,
Anna Mhairi,
LLB(HONS), DipLP
SIMPSON,
Scott Douglas,
LLB(HONS), DipLP
McGOVERN,
Gary Peter,
LLB(HONS), DipLP
SMITH, Karen,
LLB(HONS), DipLP
McPHERSON,
Callum Euan,
LLB(HONS), LLM,
DipLP
TAYLOR, Linda Joyce,
MA, LLB, DipLP
WRIGHT, Edmund,
LLB, DipLP,
DipSocWork
: 71

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