A meeting of the Faculty of Advocates on 28 October 2006 adopted with immediate effect a new set of rules about the persons who may directly instruct advocates.  They include, not only legal professionals (amongst whom are counted qualified conveyancing and executry practitioners in Scotland), but also members of other professional bodies recognised by the Faculty (that is, all UK professional bodies with a Royal Charter, or designated as a professional body under the Financial Services and Markets Act 2000, or otherwise listed in the Faculty rules), public authorities, and a number of other persons and bodies, including public limited companies, trade unions, registered charities, other recognised voluntary organisations, and the Medical and Dental Defence Union.  The immediate context for the change is concern over declining business for the Faculty, with solicitors’ traditional ‘gate-keeping’ role thought to be keeping business away from the Faculty and the limited reforms to that monopoly made under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 having little practical effect. 


There is no connection with the upcoming Court of Session appeal from the decision of the Scottish Information Commissioner in Alexander v Scottish Executive, which is concerned with information about the reasons why Sections 25 to 29 of the 1990 Act, setting out arrangements by which rights to conduct litigation and rights of audience can be granted to members of a professional or other body, have not yet been brought into force.  The Commissioner found that the Scottish Executive was justified in withholding some of the information under the FoI exemptions, but that some of the information should be released on the grounds that it did not fall under an exemption. In addition, the Commissioner ordered the release of other information on the basis that, although it was exempt, the information should be released in the public interest.  The decision is available at http://www.itspublicknowledge.info/appealsdecisions/decisions/Documents/decision057.htm.


Another new Bill missed by Scots Law News – many apologies to our readers.  On 29 September 2006 backbench SNP MSP Adam Ingram introduced a Civil Appeals (Scotland) Bill which would remove the civil appeal to the House of Lords (see http://www.scottish.parliament.uk/business/bills/77-civilappeals/index.htm).  It would be replaced with appeals to five judges in a Civil Appeals Committee appointed by the Lord President.  In the supporting material for the Bill, one of the grounds in support of removing the right of appeal is the decisions in Sharp v Thompson (sic), referred to at paras 8 and 9 of the policy memorandum, and Barker v Corus (see paras 11 -15; memorandum at http://www.scottish.parliament.uk/business/bills/77-civilappeals/b77s2-introd-pm.pdf).  All this is back to old ground for the SNP – see previously No 55.  


Rather belatedly Scots Law News has learned that a Scottish Register of Tartans Bill was introduced in the Scottish Parliament by Jamie McGrigor MSP on 27 September 2006 and had a first preliminary discussion in the Enterprise and Culture Committee on 3 October.  The Bill proposes to establish a Scottish Register of Tartans and a Keeper of that register, but is careful to provide that the right created will not be an intellectual property right (since IPRs are not devolved).  Further details at http://www.scottish.parliament.uk/business/bills/76-tartans/index.htm.


Following its decision last week in the Tehrani case that the Court of Session had jurisdiction to review a tribunal decision made in England where it affected a person in Scotland (see No 604), the latest speeches of the House of Lords, published on 25 October 2006, contain the following from Lord Walker of Gestingthorpe:


158. Nevertheless I would add that my tentative inclination is to welcome any tendency of the English law of unjust enrichment to align itself more closely with Scottish law, and so to civilian roots. I see attractions in the suggestion made by Professor Birks in Unjust Enrichment (2nd edition, p.116, under the heading ‘The Pyramid: a Limited Reconciliation’):


A pyramid can be constructed in which, at the base, the particular unjust factors such as mistake, pressure and undue influence become reasons why, higher up, there is no basis for the defendant’s acquisition, which is then the master reason why, higher up still, the enrichment is unjust and must be surrendered.


I would be glad to see the law developing on those lines. The recognition of no basis as a single unifying principle would preserve what Lord Hope refers to as the purity of the principle on which unjust enrichment is founded, without in any way removing (as this case illustrates) the need for careful analysis of the content of particular unjust factors such as mistake.


The case is Deutsche Morgan Grenfell Group plc v Inland Revenue [2006] UKHL 49, and it can be read in full at http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd061025/morgan-1.htm.  The issues in the case can be summarised as follows.  The claim was to recover money paid as tax which turned out not to have been due (as the result of a decision to that effect by the European Court of Justice).  DMG claimed restitution either under the rule in Woolwich Equitable Building Society v IRC [1993] AC 70 (undue tax payments must be repaid) or for mistake of law (Kleinwort Benson v Lincoln City Council [1999] 2 AC 349).  The IR said that DMG was out of time under applicable limitation rules.    DMG argued that, since it paid by mistake, it could rely on a special limitation-extension rule for mistaken payers (limitation does not run against a party that does not know of its mistake and could not with reasonable diligence have discovered it), whether it was claiming under Woolwich or Kleinwort Benson.  There were three major issues: (1) did the limitation-extension rule apply only where C relying on mistake as his ground of recovery (Kleinwort Benson), or is it available whatever ground of recovery is relied on, provided that mistake is present on the facts?; (2) are claimants restricted to Woolwich as their ground of recovery where it is available on facts, or should they be allowed also to rely on some alternative ground which is also available, e.g. mistake or duress?; (3) does English enrichment law require claimants to establish a positive ground for restitution, or does it require them only to establish an absence of legal ground for the transfer to the enriched person (here the IR).  The House of Lords holds for DMG, finding that there was a mistake in law and that the limitation-extension rule applies.


A Scottish court, properly advised, might have approached this case on the basis that the Inland Revenue’s retention of the payment lacked a legal basis and it therefore fell to be restored.  The discussion about mistake or error would not be necessary; the case is one of either condictio indebiti (tax not due) or, perhaps, condictio causa data causa non secuta or condictio causam ob finitam (payment made to discharge tax liability which did not do so, or which liability ceased to exist).  Under the Prescription and Limitation (Scotland) Act 1973 s 6 and Sch 1 para 1(b), the obligation to restore enrichment becomes enforceable, starting the prescriptive period of five years, when the enrichment occurs.  The period does not run during any period when the creditor was induced to refrain from making a relevant claim by its own error induced by the debtor’s words or conduct unless the creditor could have discovered the error with reasonable diligence.  The italicised words, which are not found in the English statute, might have been the big stumbling block to recovery by DMG in Scotland.  But it seems reasonably clear that the error stopping the prescription clock does not have to be part of the ground for recovery under the Scottish rules; and one imagines that the courts here will follow the House of Lords in not getting stuck on the issue of whether there is a mistake or merely a misprediction when a settled view of the law upon which transactions such as tax payments have been based is unseated by a subsequent judicial decision.


Helen Percy’s sex discrimination claim against the Church of Scotland in respect of her suspension as a minister in 1997 was settled for an undisclosed sum on 24 October 2006, just as employment tribunal proceedings were about to begin in Dundee.  Earlier, the case had reached the House of Lords, which had decided that Ms Percy did have a contract of employment with the Church (see No 525).


Chinese student Hui Yu was cleared of a motoring offence at a trial in Greenock Sheriff Court on 21 October 2006. Sheriff Margaret Gimblett (for whom see previously Nos 68, 85, 104) reached her decision after dismissing identification evidence from two police officers, reportedly commenting that at first glance all Chinese people can look the same to a native Scot, and differences would be noticed only after quite lengthy examination.  The sheriff’s remark was however supported by Sino-Scottish groups, who said that in context it was neither derogatory nor offensive, but in fact accurate; and that many Chinese felt the same way about Scots.  So Sheriff Gimblett’s contribution to Sino-Scottish relations may not turn out to be quite as damaging as that of Prince Charles, for which see HRH The Prince of Wales v Associated Newspapers Ltd (No 3) [2006] EWHC 522, para 33.