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21st century rights: more The snail and the tiger: Better network: updating
Conventions into law 200 years of Session Cases Code agreements
P.16 P.18 P.22
Journal of the Law Society of Scotland Volume 66 Number 6 – June 2021
Court reinvented
How much should civil courts rely on remote hearings in future? How
much will they need to? A major conference has discussed these questions
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www.lawscot.org.uk (home page) How will the pandemic experience and the members of the profession. But we also
www.lawscot.org.uk/members/journal/ rapid development of remote court hearings need to recognise the new working patterns
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affect the future conduct of civil litigation? that will continue after the pandemic, and
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It should be recognised how far we into play, which dictate the need for a
Editorial have come in a very short time. What was constructive approach. On the one hand,
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The extent to which these relaxation of the special measures
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problems can be overcome, and adopted on account of the pandemic,
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remote hearings deliver – and, crucially, even assuming that is otherwise desirable –
Editorial board be seen to deliver – justice, remains and there have been many comments that
Austin Lafferty, Lafferty Law controversial. Both the Society and the aspects of what has been adopted should be
Andrew Todd, Springfield Properties Plc Faculty of Advocates report a clear pattern preserved for the longer term.
Philip Hannay, Cloch Solicitors
of opinion from member surveys that remote No one, at least, is content to rest with
David Bryson, Baillie Gifford
Ayla Iridag, Clyde & Co hearings work well for procedural matters the position we have reached now. It is to
Kate Gillies, Harper Macleod LLP but not for proofs. Debates and appeals fall be hoped that the same spirit of collegiality
somewhere in between. Quite strong views and cooperation that enabled the collective
have been expressed about returning to delivery of the means to keep the courts
in-person hearings as the default for all key running through the pandemic, will come
stages of a case. into play to shape a model for the future
Future planning should take account of that will stand the test of time. Equally
Disclaimer wider considerations such as the ability to importantly, those involved may well need
The views expressed in the Journal of the Law
Society of Scotland are those of invited contributors conduct negotiations while at court, and the to free their thinking from the tramlines
and not necessarily those of the Law Society of
Scotland. The Law Society of Scotland does not
very real concerns for judicial wellbeing, of traditional procedures and methods
endorse any goods or services advertised, nor any and for the training and integration of new of conducting litigation.
claims or representations made in any advertisement,
in the Journal and accepts no liability to any person
for loss or damage suffered as a consequence of their
responding to, or placing reliance upon any claim or
Contributors
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in the Journal. Readers should make appropriate
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any such claim or representation. By so responding,
or placing reliance, readers accept that they do so at
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application for which should be made to the publisher.
© The Law Society of Scotland, 2021 Kavita Daniel Emma Craig Brown Scott
ISSN: 0458-8711
Chetty Bain Newlands is a partner Foster
Average circulation:
Print edition Jul 19-Apr 20: 13,788
is head of is a senior is health and with Patten & is a
Digital edition May-Jun 20: 13,626 Strategy associate, and wellbeing Prentice, and management
Audit pending and Legal at Colin Archibald manager at Iain Sim is consultant
the Scottish a partner, at Brodies LLP a lecturer at to the legal
Human Rights Shepherd & Strathclyde sector, and a
Commission Wedderburn Law School former banker
June 2021 \ 3
THE JOURNAL OF THE LAW SOCIETY OF SCOTLAND
VOL.66 NO.6 – JUNE 2021
Perspectives Features Briefings In practice
04 Journal online 12 26 Criminal court 38 Professional news
Website exclusives for June To what extent should remote Benefit fraud, Moorov and more Office bearers; Society’s diversity
hearings be retained? We rating; legal aid trainees; policy
05 Guest view 28 Corporate
report on the conference on work; Will Relief; accreditations
Seonaid Stevenson-McCabe Clarity in gaming contracts
the future of civil courts
and students 40 AGM report
28 Agriculture
The year of COVID; resolutions;
06 Letters 16 TFC guidance; dog control law
honorary life member
Ante-nuptial contracts; Reviews The Scottish Human Rights
29 Employment
Commission sets the scene for 41 Business finance
07 Offbeat Compensating unintended wrong
Holyrood incorporating more Managing your bank manager
Quirky news; Profile column
UN Conventions 30 Sport
42 Risk management
08 President An update on worker status
Engagement letters: no one size
The Society and the new 18
32 Intellectual property
Parliament and Government We mark the bicentenary of 44 Climate change
Rights from artificial intelligence
Session Cases by interviewing Addressing the impact on
Regulars those in charge today 34 Property inequality
Experience shared: an EWS1
45 Community law centres
22
36 Discipline Tribunal Using IT to include, not exclude
10 People How the Court of Session has
29 Consultations Bringing you up to date with
helped pave the way for more 46 The Word of Gold
47 Notifications published cases
rapid development of digital Candour in a post-truth world
48 Archive communications
49 Classified 47 Solicitor advocates
50 Recruitment Property Profile of Craig Connal QC
24
Where to start if we want to
deals when 48 The Eternal Optimist
refocus our workplaces on
you need an Difficult people, or just different?
EWS1:
people’s wellbeing
Page 34 49 Ask Ash
Anxiety over return to the office
ONLINE INSIGHT
P U B L I S H E D O N LY O N W W W. L A W S C O T. O R G . U K / M E M B E R S /J O U R N A L /
Trust and company services: CVAs and landlord interests: COVID-19 and VAT relief and hospitality:
managing AML risk when unequal is not unfair tenant insolvencies an unintended extension
Ian Wattie offers an overview, Amy Flavell and Stuart Taylor Caroline Summers outlines the David Pedley sets out how
with some practical tips, describe why a challenge by two new insolvency regimes temporary VAT relief intended to
of recently published landlords of retail chain New enacted last year which provide support the hospitality industry
supplementary guidance Look to its company voluntary further options for insolvent during the COVID-19 pandemic
on the provision of trust arrangement, brought on corporate tenants, along with has also unwittingly been given
and company services by grounds of irregularities and some current trends in CVAs to activities outside that industry
law firms, in relation to the unfair prejudice, was dismissed and administrations
Money Laundering Regulations by the High Court
4 / June 2021
OPINION
Campaign for
Complainer Anonymity
Scots law is out on a limb in not granting complainers in sexual offence cases the automatic right
to anonymity, and we have founded a campaign to have this remedied as a matter of urgency
omplainers in sexual offence cases have no enforceable right to complainer anonymity in Scotland.
C
automatic right to anonymity in Scots law. Orders made under s 11 of the Contempt of Court Act 1981 can
While this is a fact, it is one that is often met be used by the Scottish courts to protect complainer anonymity.
with surprise – even disbelief. An order can be made which allows the court to withhold a
The reality is that, while complainers in name or other matter in connection with the court proceedings.
many other jurisdictions around the world However, these orders are not automatic and, in practice, are
do have an automatic right to anonymity, no such right exists not commonly used in sexual offence cases. In 2018-19, eight
in Scotland. As founders of the Campaign for Complainer contempt orders were made. In contrast, 2,086 sexual cases
Anonymity (CCA) we believe that this is highly problematic. were prosecuted that year. This leaves Scottish complainers
Scotland is an outlier on this. For example, in England & in a legally vulnerable position.
Wales, the Sexual Offences (Amendment) Act 1992 provides that This is why we founded the Campaign for Complainer
complainants in relation to a large number of sexual offences are Anonymity (CCA). The CCA is a collaboration between Glasgow
automatically granted anonymity. The relevant sexual offences Caledonian University law students and staff. Since launching
are listed in the Act. If someone is a complainant in relation to in October 2020, we have been researching the rights of
one of these offences, the anonymity provisions will apply. complainers in other jurisdictions. The CCA wants to understand
The Act when first introduced imposed a restriction on the what works well in other parts of the world and what pitfalls
publication of a complainer’s name, address, or picture in a we need to avoid. By conducting this comparative research, we
“written publication” or “relevant programme” to be broadcast want to ensure that Scots law in this area becomes an example
in England & Wales during that person’s lifetime, if it was likely of best practice.
to lead members of the public to identify the complainant. The We also believe that public legal education is important.
introduction of the Youth Justice and Criminal Evidence Act 1999 We are raising awareness about the precarious position of
broadened the scope of the 1992 Act, prohibiting the publication complainer anonymity in Scots law, explaining why reform is
of any material likely to lead a member of the public to identify necessary. This will include outreach work via our dedicated
an individual by means of jigsaw identification. campaign website and through our social media channels
It is important to understand that this Act does not protect and podcasts.
Scottish complainers. Scottish publishers are prohibited from We are calling on Holyrood to close this legislative gap as
identifying complainants in English or Welsh sexual offence a matter of urgency. Given that four of the five main Scottish
cases. However, no Scottish statutory or common law offences political parties included some degree of commitment to reform
are included in the list of sexual crimes to which a right of in their manifestos, we hope that change is within our grasp.
complainer anonymity attaches. This means that Scottish We believe that complainers in Scottish sexual offence cases
complainers do not have the same rights as complainants deserve the automatic legal right to anonymity, and we want
in England & Wales. to change the law.
It is not only England & Wales that provides such protection
to complainers – jurisdictions including the Republic of Ireland,
Australia, New Zealand, Bangladesh, Canada and Hong Kong all If you want to learn more about the campaign, please visit the
offer complainers some degree of protection in their respective website or follow us on Twitter: @Campaign4CA
legal systems.
So, how is complainer anonymity protected in Scotland?
A convention exists that the identity of complainers is withheld
from publication. The media are also bound by the Editors’
Code, which provides that complainers should not be identified
by the press “unless there is adequate justification and they
are legally free to do so”. Journalists may therefore be ethically
constrained from publishing information which can lead to the
identification of complainers. Significantly, however, this is an
ethical code, and is not legally enforceable in our courts. Seonaid Stevenson- Annabel Mackay, Faiza Ashfaq,
Equally, while the media may be bound by journalistic ethics McCabe, lecturer LLB student at LLB student at
and longstanding convention, in an age of social media in law at Glasgow Glasgow Caledonian Glasgow Caledonian
it is increasingly concerning that there is no legally Caledonian University University University
June 2021 \ 5
CORRESPONDENCE BOOK REVIEWS
Scottish Land Law
A Scots “pre-nup”? 3rd edition,
Volume 2
WILLIAM M GORDON
AND SCOTT WORTLEY
PUBLISHER: W GREEN/SCOTTISH
Tom Quail’s article “Pre-nups: less into desuetude, and there is still UNIVERSITIES LAW INSTITUTE
ISBN: 978-0414017832; PRICE: £100
questions of protection” (Journal, relatively little demand for them.
April 2021, 18) was opportune and These contracts, like so many in Scottish Land Law is now split into two volumes. The
interesting, but invites some comment. 19th-century Scotland when such second consists of parts IV, V and VI (chapters 19-31).
What is undesirable is the current contracts were common amongst This edition has been cleverly revised and updated by,
trend of supplanting the Scottish the upper classes, were by no means amongst others, the editor, Professor Kenneth G C Reid.
phrase “ante-nuptial contract of confined to parties whose assets and Chapter 24 on real burdens, and chapter 26 on
marriage” with the English phrase finances were in marked imbalance. judicial variation and discharge of title conditions have
“pre-nuptial agreement”. While, Lady Hale’s understanding is also been produced entirely by Craig Anderson, and chapter
of course, both phrases mean an erroneous because such agreements 31 on community rights to buy by Jill Robbie. These
agreement that details the parties’ routinely embody diverse family are new additions. Each of the other chapters has been
respective conditions for, and terms matters. This is why the article expanded and updated, taking into account all changes
of, their intended marriage, under is wrong to confine itself to “the up to June 2020.
Scots law there is a contract, that is, business owner/wealthy individual There is a whole section on rights in security. The
an agreement enforceable, except to and the less wealthy other party”, detailed discussion of adjudications and charging orders
the extent that it is judged “not fair and to assert that “The agreement is is of great assistance when faced with such an entry
and reasonable at the time it was primarily to provide the wealthy client just before a transaction is about to settle.
entered into” by the court, whereas with protection.” The section on restrictions on use of land is required
under English law there is a mere However, my principal criticism reading for any property law practitioner, with a detailed
agreement, unenforceable except is the author’s relaxed approach to explanation of the Title Conditions (Scotland) Act 2003.
to the extent, if any, to which it is the question of legal advice. I am of The new chapter 24 is indispensable to anyone taking
adjudged fair and reasonable. opinion that each party to an ante- a case to the Lands Tribunal.
In this way the approaches of nuptial contract of marriage must This volume may have been long awaited, volume
the Scottish and English courts always take truly independent legal 1 having been published in 2009, but it certainly does
are essentially antithetical. “The advice, and that to state that “it is only not disappoint. It is essential reading and will be used
approach of English law to nuptial appropriate that the reasonable legal regularly as a reference point to legal issues arising
agreements differs significantly from costs of the other party requiring to in daily property transactions. It is also written in a
the law of Scotland.” In England, “A take independent legal advice should very straightforward manner accessible to even the
court… is not obliged to give effect be met” by the “wealthy client”, is inexperienced solicitor.
to” such agreements (Radmacher v not in accordance with the spirit of Melanie Roberts, Melrose & Porteous.
Granatino [2010] UKSC 42, paras 2, “independent” legal advice. For a fuller review see bit.ly/3gb9cP6
3). Incidentally, the single dissenting Importantly, the article affirms
Justice, Lady Hale, erred in stating that “the solicitor consulted should
that “the object of an ante-nuptial have a knowledge of family law Edward Kane and
agreement is to deny the economically
weaker spouse the provision to
matters”. Drafting an ante-nuptial
contract of marriage is a complex
the Parlour Maid
which she – it is usually although and difficult assignment, in many Murderer
by no means invariably she – would cases involving the laws relating ROSS MACFARLANE QC
otherwise be entitled” (para 137). to divorce, separation, taxation, (SCOTLAND STREET PRESS: £9.99;
E-BOOK £9.19)
When, in the 1950s, I embarked on pensions, inheritance, companies,
my legal career, a disproportionate trusts, domicile, jurisdiction, and more: “This is a rollicking good tale, which will bring many
amount of my time was engaged in experto crede. a smile, [but with] a good few twists and turns.”
the drafting of ante-nuptial contracts This month’s leisure selection is at bit.ly/3gb9cP6
of marriage. Since then, they may George Lawrence Allen,
fairly be said to have fallen more or Edinburgh The book review editor is David J Dickson
BLOG OF THE MONTH www.lawscot.org.uk
Is it possible to run a summer work experience While they have had to modify their previous
programme when most people are still working approaches, each has found aspects that work
in a virtual or hybrid environment? This blog as well if not better virtually, including improved
highlights the experience of two firms who did consistency of delivery and the removal of what
so successfully last year and are running further might be location barriers for some.
schemes in 2021. To find this blog, go to bit.ly/3fFHJJc
6 / June 2021
WORLD WIDE WEIRD
Spirit of the law 1
It catches mice too
A cheese loving drug baron in
With travel restrictions lifted right across Liverpool was caught after police
Scotland at last (it might be tempting fate too identified his fingerprints from
much to say “finally”), the police will be spared a picture he shared on an
having to dish out fixed penalties for being in encrypted messaging service
the wrong place – and deal with any more odd of his hand holding a pack
excuses such as the BBC uncovered in a freedom of his favourite Stilton.
of information request. bit.ly/3yYoxx2
In case you wondered, visiting another council
area to go ghost hunting in a derelict property is
not a permitted exemption to a COVID travel ban. 2
Neither is experiencing a “spiritual awakening” Hedge fund
(of yourself or some other being), or relieving A Fife man has been reunited
boredom by driving to North Berwick for a with his wallet,
takeaway. And there must be other ways of placing stolen on a night
a bet than taking the ferry from Stranraer. out 20 years ago
Of course some people are caught because they and finally found
just get themselves in a mess. Not only by getting in a hedge –
stuck up mountains, as has happened to a fair few complete with
– the prize idiot award goes to whoever let their cards including
car roll into the River Nevis. No doubt that cost video rental and
them more than just the fine. ringtone cards, though not,
sadly, his £60 cash.
bit.ly/3cbKdu3
PROFILE
Brian Yates 3
Top legal tips
A Belgian lawyer was surprised
Brian Yates is a lay member of the Society’s Appeals & Reviews and Rights – but very amused – to find a
recipe for asparagus in the official
of Audience Committees, both coming under the Regulatory Committee
gazette containing legislation and
royal decrees, in amongst the
e Tell us about your career so far? u What are the main issues you medical product pricing laws.
I am a scientist and chartered engineer who think the Society has to address bit.ly/34FYYd6
used to travel the world installing machinery. at the moment?
In parallel I worked voluntarily in the consumer Access to advice, transparency, and
field, chairing Consumers’ Association/Which? competition need addressing.
for 13 years. In later life I have done regulatory While the Society has been approved
fitness to practise work. by the Scottish Government as a regulator,
it is awaiting full authorisation to regulate
r What led you to become involved new types of businesses such as can be
with the work of the Society? formed elsewhere in the UK.
My business interests in Edinburgh reminded Solicitors should be more open about
me of the different legal system in Scotland. pricing. I heard some being likened to TECH OF THE MONTH
My solicitor thought I could bring an external upmarket dress shops, with friendly
and diverse view to Society committees. knowledgeable staff but no prices on MeandR
the clothes. With the Society’s price iOS, £1.99
t Has anything surprised you about transparency guidance, consumers
committee work or the Society? should begin to see If you’ve been walking to
The Society has a slight image of improvements here. stay healthy during the past
conservatism but in practice I find it Separately, too many potential 18 months, and want
dynamic and eager to engage with lawyers go through years of study to keep strolling in
members. I had expected that a greater only to find that traineeships are the future, then the
proportion of conveners and committee scarce. Ultimately the Society MeandR app might
members would be lay. In reality, has no control over diploma or be for you. It gives
as with the Regulatory Committee, traineeship numbers. you challenges
the subcommittees have and distances to
50% solicitor, 50% non- Go to bit.ly/3gb9cP6 cover in your local
solicitor members. for the full interview area. Perfect for
burning off the
lockdown calories!
June 2021 \ 7
PRESIDENT
Ken Dalling
The Society has worked tirelessly through the uncertainties of COVID and, with a new
Government and Parliament, will strive to preserve the integrity of the justice system –
and keep pressing for necessary support for the legal aid sector
olicitors are great! There, I’ve said always to have new priorities but I trust that certain core principles
S
it and, without any sense of hubris, will remain unchanged.
I am sure that I will be saying it many Whatever may be the driver for change (or “modernising” as
times to many people over the next is the term often used to justify change), the need to preserve
12 months. access to justice and, with it, the integrity of our system of justice
We are, each of us, facilitators and is paramount. There have been many changes already made to our
problem solvers whose assistance practices in the civil and criminal processes. Many of these have
is essential to the running of every been an improvement for all users; they have brought savings in
aspect of civil society. We bring time and trouble. There will, I hope, be many more. None of them,
expertise and support to all, from the captains of industry to the however, should be at a cost to
destitute, not just to make their lives easier but to make their lives the solicitor or their client.
work. Be it the purchase of a property or a business, inheritance And on the subject of
planning, civil or criminal litigation or, indeed, any other of the cost, what about legal aid?
myriad circumstances in which our help is needed, there will be If I am right about the worth
a Scottish solicitor delivering for their clients somewhere – on of the solicitor, how come
the phone from their office or home, in person in their office, their publicly funded advice and
client’s home or in a police station, prison or court – every minute representation has been so
of every hour of every day of the year. As is well said by the motto undervalued for a generation?
of the Society, Humani nihil alienum, there is no aspect of the Why have successive
human condition that is alien to a Scottish solicitor. administrations done so little
We live in an uncertain world, which is constantly changing. to ensure that solicitors are
With uncertainty comes worry and, probably for most of us, reasonably remunerated for
the worries of COVID and the disruption of lockdown have been their work, and that to the
horrible – whether that was because we couldn’t work or because extent that the reality of legal
we were the only ones doing so. In particular the closure of the aid deserts is upon us? Others
courts and of Registers of Scotland was not something that Past will have to answer that –
President John Mulholland would have seen coming when it hit and I would encourage the
three months before the end of his tenure. Despite his excellent questions be asked.
work during that time there remained a lot for Amanda Millar to What I say is that the evidence of underfunding is obvious and
do. Be under no illusion, both she and John have worked tirelessly, something more must be done, and done quickly. The increases
supported by Lorna Jack and the Society’s staff, Council and provided for recently by the former Cabinet Secretary Humza
committee volunteers. Our aim has been to ensure that the voice of Yousaf are only a start. I look forward to working with his successor
the profession, as well as due consideration for the interest of its Keith Brown to ensure that improvements happen. Meantime, as
clients, has been at the centre of all that has been needed to cope I write this, the Society is constructively engaged with civil servants
with the disruption and to see a way out of it. (I had rather hoped to ensure full distribution of the allocated resilience fund monies, as
that Amanda would have fixed it all before it was my turn, but it well as promised trainee support. I will be happy if, by the time you
seems that even her considerable talents have limitations!) read this, that is old news!
Leading towards the light
Just maybe there is light at the end of the COVID tunnel. Scotland Ken Dalling is President
has a newly elected Government and Parliament, which will hope of the Law Society of Scotland –
to lead us there. Newly elected, or re-elected, politicians seem President@lawscot.org.uk
8 / June 2021
People on the move
ABERDEIN CONSIDINE, Aberdeen Abu Dhabi-based Paul Jarvis, who
and elsewhere, has announced became UKIME chief executive
10 promotions including two new on 1 May.
partners. Leanne Warrender
in Residential Conveyancing, DLA PIPER, Edinburgh and
Aberdeen, becomes a partner, internationally, announces the
as does Laura Browne (Banking appointment of Stuart Murdoch
Litigation, Glasgow), who moved as partner in its Edinburgh
from partner to consultant two Litigation & Regulatory practice.
years ago. He joins from BURNESS PAULL,
Kayleigh MacLaren (Corporate where he was also a partner.
Property, Aberdeen) has been
promoted to director; Eleanor DRUMMOND MILLER LLP,
Comfort (Dyce) has been promoted Edinburgh and elsewhere,
to senior associate, as have Aberdein Considine: Leanne Warrender,
has announced the following
Catriona Ramsay (Employment), Danny Anderson, Kayleigh MacLaren promotions: to partner, Sharon
and John Di Paola (Banking Fleming (Private Client, and head
Litigation), both in Glasgow. Joelle of the Bathgate office), Sarah
Neep (Banking Litigation, Glasgow) Jack (Immigration), and Ailsa
becomes an associate, and Katie Meiklejohn (Conveyancing and
Hutchinson (Westhill) and Danny Property); to senior associate,
Anderson (Corporate, Aberdeen), Anna Rani and Lorna Hale;
become senior solicitors. Tahir and to associate, Carrie Burrows
Bashir, lender services operations and Aine McShane.
manager in Newcastle, is promoted
to associate director. INKSTERS, Glasgow and
elsewhere, have grown their
BANNATYNE KIRKWOOD FRANCE consultant solicitor practice
& COMPANY, Glasgow, are pleased with three new appointments:
to announce the appointment of Stephanie Christie-Carmichael,
Alan William Eccles, formerly based in Glasgow, who joins
a consultant with the firm, as a Aberdein Considine: from EBS TRUSTEES and
Laura Browne, John Di Paola,
partner of the firm, effective as Joelle Neep, Catriona Ramsay deals with executry and estate
from 1 May 2021. administration and succession
planning; Jackie Jobson, who has
BURNESS PAULL, Edinburgh, CLYDE & CO, Edinburgh, Glasgow, DENTONS, Edinburgh, Glasgow, established an office for Inksters
Glasgow and Aberdeen and Aberdeen and globally, has on the Isle of Eigg, where she lives,
Aberdeen, has internationally, appointed Edinburgh-based and now covers dispute resolution
appointed Bob has announced partner Brian Moore as divisional for Inksters in the western
Ruddiman the promotions leader for Corporate, covering the Highlands & Islands; and Sarah
as head of of Alison practice’s operations across the Windsor, based in Inverness,
Energy. He joins Tyler and Ann UK and Ireland. His appointment who joins from INNES & MACKAY
from PINSENT Bonomy to legal is part of a wider restructuring and deals exclusively in family
MASONS, where he directors in within the UKIME region under law matters.
held senior leadership positions Edinburgh
including heading the Global and Glasgow,
Energy Sector team. respectively, as
part of its 2021
CAESAR & HOWIE, Bathgate, promotions round.
Livingston, Falkirk, Alloa, Bo’ness
and Whitburn announces the COLLEDGE & SHIELDS, Dumfries,
retiral of its senior partner, announce that Hannah Stokes has
David Haig Borrowman on been promoted to associate with
31 March 2021 after 45 successful effect from May 2021.
years with the firm. David will
continue to be associated with DAC BEACHCROFT, Glasgow,
the firm as a consultant. The Edinburgh and UK wide, has
partners and staff wish him re-elected John Maillie, a partner
a long, happy and healthy in the Glasgow office, for a third
retirement. Graham Pattison Irvine consecutive three-year term as
Stephanie Christie-Carmichael
has been appointed senior partner location head for DAC Beachcroft in and Jackie Jobson from Inksters
from 1 April 2021. Scotland, beginning on 1 May 2021.
10 / June 2021also succeeds her as head of Planning team; and Eilidh Durkin
the firm’s Public Sector practice. joined in March from DWF as an
Morton Fraser associate in the Corporate team.
has appointed In Edinburgh, Courtney
Martin Minton Clelland returns to Shoosmiths
as a senior as a senior associate in the
solicitor to its Dispute Resolution & Litigation
Agricultural & team after several years working
Rural team. He in Jersey. Nina Oliver, previously
joins from INKSTERS. with DENTONS, is appointed
as an associate in Real Estate
PETERKINS, Aberdeen, (construction); and Grace Watson
Inverurie, Huntly and Keith, and Samantha Mackie join as
intimate the retiral of Graham associates in the Employment
George Matthews from the team, from DWF and LAW AT
partnership with effect from WORK respectively. Alice Gray
30 April 2021. (Planning) and Gillian Todd (Real
MacDonald Lynch Estate) have been appointed as
PINSENT MASONS, Edinburgh, paralegals in Edinburgh.
Glasgow, Aberdeen and
JACKSON BOYD, Glasgow, has under a new team led by Elaine internationally, has SIMPSON &
announced the promotion to MacDonald, a former associate at appointed Glasgow MARWICK,
partner of Laura Macdonald, head AUSTIN LAFFERTY LTD, Newton partner Rosalie Edinburgh,
of the Employment team, and Alan Mearns, who becomes a partner Chadwick as has appointed
Cameron (Dispute Resolution); along with Colin Carr, who was global head of David Coutts
to senior associate, Dave Berry a consultant to that office. Oil & Gas. as head of its
(Personal Injury); and to senior Founder Gerry Lynch will new Family Law
solicitor, Jennifer Rowlinson remain as a consultant. RAESIDE CHISHOLM, practice. He joins from TURCAN
(Personal Injury). Glasgow are delighted to CONNELL, where he was head of
MACKINTOSH & WYLIE LLP, announce the appointment the Glasgow team.
KIPPEN CAMPBELL LLP, Perth, Kilmarnock, Stewarton and Irvine, of Alison Gourley as a senior
is delighted to announce the is delighted to announce the associate in Residential TLT LLP, Glasgow, Edinburgh
appointment of Robert Simon assumption of Karen Stewart, Conveyancing with effect from and UK wide, has announced
Macduff-Duncan WS as a partner head of the Private Client 19 April 2021. She joins from the promotion of five lawyers to
with effect from 1 May 2021. department, as a partner from MITCHELLS ROBERTON. partner, including Glasgow-based
Robert was formerly a senior 1 May 2021. financial services disputes lawyer
associate with Kippen Campbell Scott Colquhoun has been Louise Chopra, effective 1 May
and will assume responsibility MACROBERTS, Glasgow, appointed legal director – 2021. Lucy Harrington, a property
for the firm’s Residential & Edinburgh and Dundee, has moved Scotland for TAYLOR WIMPEY and commercial contract litigator
Commercial Property department. its Edinburgh office to 10 George UK LTD from 1 April 2021. based in TLT’s Glasgow office, is
Street, Edinburgh EH2 2PF (t: 0131 one of 11 associates promoted to
LEXLEYTON, Glasgow, Edinburgh, 229 5046; f: 0131 229 0849). SHELTER SCOTLAND has legal director.
Manchester and appointed Andy Knox,
London, has MASSON GLENNIE, Peterhead formerly principal solicitor at Michael Walker, head of
appointed and Fraserburgh, announce the LANARKSHIRE COMMUNITY Casework & Information
newly qualified appointment of Louise Kershaw LAW CENTRE, as national legal Governance at the SCOTTISH
Calum as a partner in their Private services manager. CRIMINAL CASES REVIEW
MacLean Client team and Andrew Mackey COMMISSION, has been named
as a solicitor as an associate in their Court SHOOSMITHS, Edinburgh, as the Commission’s next chief
in its Glasgow department, with effect from Glasgow and UK wide, has executive, succeeding Gerard
Employment Law team. 1 April 2021. confirmed the appointment Sinclair, who retires in September
of seven solicitors and two after more than 18 years in post.
LINDSAYS, Edinburgh, Dundee MORTON FRASER, paralegals across its teams in Mr Walker began working with
and Glasgow, has appointed Mike Edinburgh, Glasgow and Edinburgh. the Commission as a legal officer
Piggot to its Dispute Resolution Glasgow and Lauren Miller, who joins from in 2001.
team in Dundee. Newly qualified, London, has SHEPHERD & WEDDERBURN,
he has also worked for several appointed becomes a legal director in the Intimations for the People
years with the DUNDEE CITIZENS Jenny Dickson, Glasgow based Real Estate section should be sent to peter@
connectcommunications.co.uk
ADVICE BUREAU. a partner in the team. Also in Glasgow, Geraint
To advertise here, contact
Litigation team as Hughes, previously with
Elliot Whitehead on +44 7795 977708;
LYNCH & CO, Glasgow has been its chairman, succeeding Maggie BRODIES, joins on 1 June 2021 journalsales@connectcommunications.
rebranded MACDONALD LYNCH Moodie, who retired in April. She as a senior associate in the co.uk
June 2021 \ 11C I V I L L I T I G AT I O N
Court,
but not as
we know it
An important conference has been held on the future of civil litigation given the technology developed during COVID-19, with
discussion focusing on how extensively remote hearings should be used longer term. Peter Nicholson offers an overview
ow should our civil He also observed that the justice system only 25% said the same of first instance debates,
H
courts take forward was the concern not only of its direct 15% with appeals, and a mere 3-5% agreed as
the changed ways of participants, but also litigants, who wanted respects court or tribunal evidential hearings.
operating as a result of quick and fair resolution. Asked which aspects “do not work at all well
COVID-19? Are remote More than a dozen papers from a range of remotely”, answers ranged from fewer than
hearings here to stay, interests had been prepared and circulated in 5% for procedural hearings, through 12.5% for
or should we return, in advance, and throughout the day these were debates and 16% for appeals, to 66-68% for
whole or in part, to spoken to, supplemented and the focus of evidential hearings – which suggests that at least
traditional in-person questions from attendees. An official report with debates and appeals, a large body in the
hearings when that is possible? More than 200 on the day will be published; this feature middle find less of a difference.
people attended an online conference organised attempts meantime to provide a montage The Faculty of Advocates reported a similar
by the Judicial Institute for Scotland on 10 May of the views expressed. spread, with less overall enthusiasm for remote
to hear and share views and experiences. hearings. While 91% of members surveyed agreed
Opening the proceedings, the Lord President, Good, in parts that they are “a useful addition” to the options for
Lord Carloway said the purpose was not to What has been the experience of legal court hearings, just under half supported them
achieve any particular agenda, but to provide professionals to date? Surveys reported to becoming the default for procedural hearings,
a focal point for beginning to consider what conference show a pattern emerging. The Law below 20% did so for hearings of legal argument,
new methods should be retained or improved, Society of Scotland found more than three and fewer than 5% for witness evidence. In
and what previous practices, especially in- quarters of solicitors who responded (78.5%) addition, 72% believed they should only be used
person hearings, reinstated. Reasonable in favour of remote hearings continuing, but with parties’ consent.
people would disagree about the distance whereas over 90% agree that procedural Conference was told that 76% of sheriffs believe
and direction of travel. hearings “work particularly well remotely”, virtual courts have made their job more difficult.
12 / June 2021Perceptions matter on the “principle that a change to remote noted various pros and cons and concluded:
Why should this be? There is an element of hearings should be positively justified before it “Remote substantive appeal hearings have a
frustration with the technology – “we are still is made”, Faculty maintains that “investigating place and will prove to be a very useful ‘tool
at the bottom of a very substantial curve in these poorly understood aspects could be of in the box’. In my view, the SAC should retain a
this regard”, the Sheriffs’ Association observes, critical importance”. discretion as to whether to convene a remote
referring to connectivity issues as well as lack Set against that, those who are or physical substantive appeal hearing. That
of familiarity. geographically remote from the court might would allow a degree of flexibility which can
Technical problems apart, however, many well benefit – provided the tech is adequate – take account of the views of the parties, issues
practitioners claim to find their job more difficult including through being able to access of convenience and any particular issues which
with remote hearings, whether conducting the specialist courts or judges; and there was may arise in relation to party litigants.”
hearing itself or from losing other benefits of wide agreement that expert evidence taken Specialist courts such as the commercial
being at court. this way minimises disruption to the expert’s and personal injury courts, she continued,
A paper from the Society, presented by diary, and therefore cost. were “well placed to take advantage of remote
personal injury lawyer Gordon Dalyell, focused As regards the public, remote hearings enable hearings, including evidential hearings”, as had
the issues. Leaving aside inconsistency of large numbers to observe proceedings – Lord become the default. Child welfare hearings
approach across different courts (which is Tyre reported that the Hearts/Partick promotion might work well in some cases, but their
being addressed), a large majority of survey and relegation case attracted 950 attendees, remote conduct required further research and
respondents found witness examination and leading him to pose the question whether there consultation (Lady Wise had particular concerns
cross-examination more difficult, and felt it should be a separate category of cases for over these). Ordinary proofs required active
was harder for the judge or sheriff to assess remote hearings. But having to apply to the case management for remote hearings, and
credibility, and that clients’ interests were court in advance for a link, Faculty suggests, is procedural changes needed to be considered.
disadvantaged. Practical problems arose in not truly open justice. Whether viewing through Concluding, the sheriff principal affirmed her
communicating confidentially with client and/or technology makes it easier or harder to follow belief in the opportunities from new technology,
counsel (the “tug on the gown” in court). Many what is going on appears to depend on your and the need to “guard against the desire to
also found it harder to communicate effectively point of view. simply return to old practices”.
with the court, and disliked the additional From the Commercial Court, Lord Tyre hoped
written submissions in advance. that many of the efficiency practices adopted for
Several speakers addressed assessment of remote hearings would be retained, whatever
credibility. Individual judges denied they found was decided in relation to proofs in general –
this more difficult with remote proofs, but the and noted further considerations that might
Sheriffs’ Association reported “real concerns” favour greater use of Webex (short proofs;
at least with the quality of evidence. The witnesses at a distance; open justice), not only
Society maintains that whether or not solicitors’ in commercial actions.
impressions are correct, “The perception is Sheriff Wendy Sheehan, President of the
all important as justice needs to be seen to Sheriffs’ Association, however noted that the
be done”; and that there is a risk of losing Association’s positive observations about remote
confidence in the system. hearings came with “significant caveats” – the
Further sentiments expressed at conference
include that impromptu discussions on
“A large majority of greater administrative burden, the need for
improved technology, and the occupational
settlement or future conduct of the case are survey respondents health issues for sheriffs. There were concerns
unlikely with remote hearings – despite best
efforts these often take place only when parties
found cross-examination not only about quality of evidence, but issues of
contempt and prevarication, and cases involving
are faced with the reality of court. more difficult” interpreters or multiple parties. Summary
sheriffs reported difficulties in engaging with
Access to justice: jury out parties and attempting early resolution. With
Rightly, presenters highlighted the need to Lady Wise noted a report that journalists cases such as adoptions and children’s referrals,
safeguard access to justice. Here there are favour remote viewing, as it saves travelling “multiple concerns arise”.
arguments both ways. It also has two distinct and waiting time. “It is clear that allowing Inner House judge Lord Pentland, while fully
aspects: open justice, through scrutiny by the media and the public to continue to view behind the supporters of in-person advocacy
media and the interested public, and access proceedings remotely would be in the interests (remote appeal hearings, in his view, have been
by the individual to the impartial forum that of open justice,” she concludes, while also “sub-optimal”), attached particular importance to
the court provides. recognising that certain implications still the court as a “place”: “The court as a physical
The Society’s survey found 24% who believe need to be scrutinised in detail. Perhaps, as place supports the public’s acceptance of the
that remote hearings increase access to Faculty concludes on this aspect, citing the live legitimacy and authority of the court, and the
justice; relatively few thought the opposite (a streaming available from the UK Supreme Court, law itself.” This was particularly demonstrated
subset of an 11% stating “other reasons” for an technology is better viewed as “complementary by the Inner House hearing in the prorogation
overall detrimental effect). For litigants, Faculty rather than customary”. That in turn would case. In addition to its public education benefits,
suggests that whereas remote hearings will not require the courts to be much better equipped “It is difficult to imagine reporters being able to
speed up the process (still being dependent on than they are now. convey to the public this dramatic assertion of
judicial resource), there is a potential adverse the authority of the law, without the reporters
impact on the less technologically literate or Views from the bench themselves being at the site of justice, to bear
those with limited IT; they may affect litigants’ Judges offered a range of assessments from witness to it and show it.”
trust in the process, and prove more costly their experience. Giving the perspective of the This has constitutional significance:
given the additional written advocacy. Founding Sheriff Appeal Court, Sheriff Principal Anwar the court needs to impact on public
June 2021 \ 13C I V I L L I T I G AT I O N
consciousness in the same way as, say,
Holyrood or 10 Downing Street. Otherwise
“The courts would lose stature in comparison
to executives and legislatures at the local and
national levels.”
Concluding by quoting the Lord President’s
comment from summer 2020, “The court is
not just a physical space. It is a public service,”
Pentland added: “The question is how best
Don’t streamline – transform to ensure that the quality of that service is
maintained and enhanced.”
Kay McCorquodale of Scottish Courts &
To set against the cautious approach of likely to be good enough, as good, Tribunals Service (“SCTS”), however, put the
some presenters, a paper by Richard or better? The commentary is currently quote in its fuller context. Lord Carloway called
Susskind – who else? – sought to challenge silent on this issue, in so far as I can see. it a “misconception” to regard the court as a
thinking that simply reflects established As a matter of urgency, that silence must building, and continued: “Virtual courts and
ways of conducting litigation. be broken.” online services should, and now will, be viewed
The challenges posed by coronavirus But we need more data, so that policy as core components of the justice system,
– maintaining a sufficient level of service making can be evidence based. rather than short-term, stopgap alternatives
while courts are closed, and dealing with To those who ask, “What about justice?”, to appearances in the courtroom.”
the accumulated backlog – sit for Susskind Susskind questions what justice actually
alongside the longstanding one of litigation means. He identifies seven separate strands, Default position?
taking too long, costing too much, and from substantive (fair decisions) through to What outcomes can we foresee from all this?
the process being “unintelligible to all but sustainable (sufficient resource). Objections Both the Society and Faculty have called for the
lawyers”, an access to justice problem in to remote courts tend to focus on open default position for proofs to revert to in-person
itself: most people cannot afford to go justice and procedural justice (he questions hearings, Faculty via a joint statement of the UK
to court. whether experience bears this out); but a and Ireland Bars which identifies many of the
Whereas for most lawyers and judges “more nuanced conversation” is needed; same issues as reported by the Society. “[Our]
technology is a means to streamline and their widespread continuing use needs universal sentiment... is that remote hearings
existing practices, for Susskind it should “deep discussion rather than dismissive deliver a markedly inferior experience”, the Bars
bring about “transformation... to allow us to emotional appeals to justice”. state. And they have wider concerns including
do things that previously were not possible Returning to his transformative agenda, the effect on the training experience; and the
(or even conceivable)”. Susskind regards remote hearings as isolation – “in marked contrast to the usual
His presentation recognised how “but a first step in our migration away collegiality of our respective Bars” – which is
“adaptable and resourceful” judges from the settlement of legal disputes having a negative impact on wellbeing.
and lawyers had been when faced with exclusively in physical spaces”. Beyond
the pandemic, and their better than lie online judging (“paper hearings”, to
expected view of remote hearings, while
acknowledging the difficulties some people
some), and what he calls (as in his most
recent book) the “extended court”, in which
“The conference heard
have encountered, the tiredness, and as well as carrying out their primary that the goodwill of the
problems with documents.
Not only procedural matters have been
adjudicative function, courts provide
services including systems to help users,
profession might
found well suited to remote hearing, in his especially non-lawyers, understand their evaporate if there is any
view: small money claims, minor criminal
offences, commercial disputes and civil
rights and obligations; guides to the forms
of resolution available; and facilities to
attempt to proceed other
appeals can be added to the list. “Contrary encourage settlement. than by consensus”
to early thinking..., it is mistaken to believe While this may sound radical,
that remote hearings are ideally suited “I simply do not believe that improving and
to high volume, low margin cases, while optimising our current court processes will The Bars’ unanimous conclusion is therefore
traditional physical courts are the places be sufficient to overcome the intolerable that remote hearings can become the default
in which to argue and settle the lower access to justice problem, as compounded position for short or uncontroversial procedural
volumes of high value cases. There is no by the backlog that is building because business, and their use “will be vital in tackling
direct mapping between the value of a case of the virus”. But since courts will have accrued backlogs... However, for any hearing
and its suitability for remote treatment.” their hands full just dealing with current that is potentially dispositive of all or part of a
Another important question: “When we backlogs, alternative resolution platforms case, the default position should be ‘in-person’
ask what types of cases and issues can be should be encouraged. hearings. Remote hearings should be available
settled by remote hearing, are we trying to Concluding, Susskind believes court as an option in such cases where all parties
determine when remote hearings can be services should be simultaneously planning (including the court) agree that proceeding in
said to be better than physical hearings; for the short, medium and long term, the that way would be appropriate”.
or as good as physical hearings; or not as last of these projects comprising the radical The conference further heard that the
good but ‘good enough’ (and when is good redesign of our courts to create something goodwill of the profession might evaporate if
enough good enough?); or not as good but, “better than what we have today”. And it there is any attempt to proceed other than by
with some investment and imagination, should start with a blank sheet. consensus. This was accepted; indeed a panel
of presenters readily agreed with a questioner
14 / June 2021who asked whether Scotland being a small scrutinise evidence, and deliver justice – while digitally enabled justice system in which all users
jurisdiction with people who knew each other increasing efficiencies and improving access have a role to play”.
had helped in working things out thus far. to justice, both for parties and observers.
The anxiety some suffer with technology is Best of both?
But the backlog... acknowledged; but this should diminish with Reading between the lines, one could detect a
Those who hanker for a return to more in-person experience. Technical issues arise in fewer than belief on the part of the court authorities, and
hearings will nonetheless have to face up to 1% of cases, and are usually due to individuals’ perhaps some senior judges, that remote hearings
certain realities flagged up in McCorquodale’s errors or poor connectivity. (This appeared should have a greater role in the longer term
paper. SCTS modelling predicts that, even with somewhat at odds with frustrations reported by than many practitioners yet feel comfortable with.
additional trial capacity, criminal case backlogs others.) If virtual hearings take longer, they also Reconciling these standpoints will be a central
in the sheriff and High Court will take three to call for more effective judicial case management. focus of the discussions that lie ahead. And, as
four years to clear. For that time, particularly Regular breaks may be needed, but occur also speakers of different views commented, much
while physical distancing remains, “there will be in physical hearings. more evaluative work is needed before we make
a continued need to maximise the levels of both The majesty of the courtroom? Dress code anything approaching final decisions.
civil and criminal business that can appropriately and court etiquette and practice are retained. Wrapping up the conference, Lady Dorrian,
be undertaken by virtual means”. Complex or sensitive hearings? Witnesses may Lord Justice Clerk, observed that while there
Longer term, SCTS anticipates that virtual feel less intimidated, and credibility can still be should be no sacred cows, we do have sacred
hearings will continue to be integral to civil assessed. (Note the views reported above on principles that must not be lost. Sometimes
proceedings, particularly with procedural this point.) Potential additional benefits are less remote hearings will suit all concerned, and
matters or where the court is not local to the waiting and travel time, flexibility in hearings, we should be open to the possibility of live,
lawyers or clients. “This will, however, always and creative ways of presenting evidence, as virtual and hybrid hearings.
be at the discretion of the judiciary”. (The weight well as efficiency over document bundles. For her, there were three areas with issues
to be given to parties’ preferences also attracted For the future, SCTS will “work [in partnership] of particular concern: open justice; access to
various observations at conference.) with agencies across the system to ensure that justice (for which the traditional system also
SCTS believes that although different innovations are retained and developed”. It will raised issues); and welfare and morale. “They say
from traditional hearings, virtual courts can involve considerable investment, but the goal is you can’t have the best of both worlds,” Dorrian
still enable a comprehensive factual enquiry, to create a better system – “a modern, flexible, concluded. “But that is no reason not to try.”
June 2021 \ 15You can also read
