Month: April 1998

On Friday 18 September 1998 it was announced that Robert Reed QC had been appointed to the Court of Session bench. At 42 Mr Reed is the youngest appointee to the Scottish bench this century. One of the unsuccessful candidates for the British judgeship at the European Court of Human Rights earlier in 1998, Mr Reed has specialised inter alia in human rights and has also published on the subject of Scottish devolution. It therefore seems reasonable to speculate that his appointment can be linked with the imminent passage into law of both the Scotland Bill and the Human Rights Bill. Mr Reed is a graduate of Edinburgh and Oxford Universities, and he originally trained as a solicitor with Shepherd & Wedderburn. His former devil-master in the Faculty of Advocates is now the Lord President, Lord Rodger of Earlsferry. The Edinburgh Evening News for 22 September announced the news of Mr Reed’s appointment under the informative headline, Beak, 42. Mr Reed was installed as Lord Reed on 24 September 1998. (27 September 1998)

A food company, Flavour of Scotland, has launched a Scottish Parliament tartan with which it proposes to brand a range of products including shortbread, brown sauce, tinned haggis and whisky miniatures. The company also hopes that the tartan will be used in the furnishings of the Scottish Parliament itself. The tartan contains the colours of all the Scottish political parties. An application has also been made to register the name Scottish Parliament as a trade mark. It may be noted that the Scottish Parliament itself will have no legislative competence to deal with intellectual property rights. Meantime the Roslin Institute in Edinburgh has applied to register the name Dolly as a trade mark. Dolly is the name of a sheep created by the Institute, the first mammal to be cloned from an adult cell. Earlier Zanussi had advertised its washing machines and other appliances under an image of a sheep which was not Dolly but was labelled Dolly alongside a slogan The misappliance of science, playing on its well-known and long-established the appliance of science slogan. (See below, No 14, for the application to patent Dolly, or the process by which she was created.) (22 September 1998)

On 24 August 1998 the British and US Governments announced that they had abandoned their opposition to the idea that Abdel Basset Ali al-Meghari and Al-Amin Khalifa Fhimah, the two Libyans accused of planting a bomb aboard the Pan-Am jet which exploded over on 21 December 1988, should be tried other than in Scotland. Both Governments have indicated that they are now prepared to countenance a trial taking place in an international court in the Netherlands, before four Scottish judges and subject to Scots criminal law and procedure; but without a jury. Any appeal would also be heard in the Netherlands but before a panel of five Scottish judges. This is a modified version of the proposals made by Professor Robert Black of the University of Edinburgh (for which see No 25 below). It appears that this proposal is in principle acceptable to the accused and to the Libyan Government, although final agreement has not yet been reached. If the trial takes place, the venue will be Camp Zeist, a Dutch airbase near The Hague. For a factual account of the events since the bombing and up to the beginning of this year, and an analysis of the governmental responses to his proposal to that date, see R Black, The Disaster, (1998) 9(2) Stellenbosch Law Review 207-216. If the trial takes place in the near future, serious difficulties will arise over the availability of judicial personnel. The appeal in the Piper Alpha case is expected to occupy most of the time of four judges in the First Division over the next legal year; if a further four were to be occupied in the trial, the other work of the Court of Session and the High Court of Justiciary could be gravely affected. (22 September 1998)

The first judicial citation of The Edinburgh Law Review occurred in the speech of Lord Hope of Craighead in Dollar Land (Cumbernauld) Ltd v CIN Properties Ltd, 16 July 1998, 1998 SLT 992, a decision of the House of Lords on the law of contract, unjustified enrichment and irritancy in leases. Lord Hope said (at 997L- 998E): My attempt in Morgan Guaranty Trust Company of New York v. Lothian Regional Council 1995 S.C. 151, 155C-D to describe the remedies which are available to redress an unjustified enrichment has attracted some criticism: Robin Evans-Jones and Phillip Hellwege, Some Observations on the Taxonomy of Unjustified Enrichment in Scots Law (1998) Edinburgh Law Review 180, 196-197. Underlying that criticism is a desire that the law of unjustified enrichment should develop in a uniform way, and a concern that if the law continues to express the remedies in terms of restitution, repetition and recompense it will inhibit that development. I sympathise with the desire that the law of unjustified enrichment should be unified in order to detach it from the confusing subdivisions which have arisen from its explanation in terms of quasi-contract. In his important contribution to this debate Restitution: A View of the Scots Law (1985) Current Legal Problems 57, 63 Professor Peter Birks said that the worst consequence of division by benefit received is the impression given that the causes of action differ depending on the form in which an enrichment is received and that the only cure was to unify the subject. I sought to make my position clear when I said in the Morgan Guaranty case at p. 155E that the important point was that these actions were all means to the same end, which is to redress an unjustified enrichment upon the broad equitable principle nemo debet locupletari aliena jactura.       It is an important part of this reasoning to recognise that the obligation to redress the enrichment arises not from contract, but from the separate duty which arises in law from the absence of a legal ground to justify its retention: see Stair, Institutions, I.7.7. On the other hand it does not seem to me to be inconsistent with the broad principle of the law of unjustified enrichment for the various situations in which redress may be sought to be expressed in terms of remedies. In Shilliday v. Smith 2 April 1998, the Lord President pointed out that repetition, restitution, reduction and recompense are simply examples of remedies which the courts grant to reverse an unjust enrichment, depending on the way in which the particular enrichment has arisen. It may be unrealistic to expect those who practise in the courts to depart from such terminology. In the context of the written pleadings which are used in our practice the pursuer is expected to state the nature of the remedy which he seeks, as well as the legal basis for it. For my part I see no harm in the continued use of these expressions to describe the various remedies, so long as it is understood that they are being used merely to describe the nature of the remedy which the court is being asked to provide in order to redress the enrichment. The event which gives rise to the granting of the remedy is the enrichment. In general terms it may be said that the remedy is available where the enrichment lacks a legal ground to justify the retention of the benefit. In such circumstances it is held to be unjust. Shilliday v Smith is reported at 1998 SLT 976.

Enric Miralles from Barcelona has been chosen to be the architect of the Scottish Parliament building at Holyrood, it was announced on 6 July 1998. His competition-winning design is inspired by images of upturned boats and the ambience of the site between the crag and tail of the Old Town of Edinburgh and Arthur’s Seat and Salisbury Crags. But, although construction of the building is expected to commence in spring 1999, the design or concept is still at an early stage. The day after Miralles’ appointment, the Edinburgh Evening News reported that the architect was being sued in Spain in respect of the collapse during construction of a building designed by him. But it was thought that he was a co-defender alongside the building contractor and the engineer, and that the fault behind the collapse lay with one or other of those parties rather than the architect.

The European Court of Justice has ruled in an Article 177 reference from the House of Lords in a Scottish appeal that the Equal Treatment Directive (Council Directive 76/207/EEC, OJ 1976 L39/40) prevents dismissal of a female worker at any time during her pregnancy for absences owing to pregnancy-related illness, even if the dismissal is the result of a term in the worker’s contract of employment applicable to male and female workers alike (Brown v Rentokil Ltd, The Times, 2 July 1998). The Court reasoned that otherwise Community law protection would only be available to pregnant women able to comply with the conditions of their employment contracts, which would render the Directive ineffective. The situation of a pregnant worker unfit for work through pregnancy could not be treated in the same way as that of a male worker ill and absent through incapacity for the same length of time. For earlier comment on this issue, see C. Boch, When is pregnancy unique to the female sex?, (1997) 1 Edinburgh Law Review 392-399.