Silly season over: pleural plaques Bill on the agenda

The Scottish Parliament Justice Committee resumes work on 2 September 2008 after its summer holiday and ahead of that comes a blast, via Scotland on Sunday for 31 August, on one of its first subjects, the Damages (Asbestosis-Related Conditions) (Scotland) Bill, i.e. the one to create liability for pleural plaques.

Scotland on Sunday carries a story in its business section reflecting opposition to the Bill from the Association of British Insurers, Scottish Financial Enterprise, the CBI and the Scottish Chambers of Commerce (all due to give evidence at the Committee's first meeting).  The essential thrust of the opposition is that the Bill's costs to Scottish industry will damage its competitiveness.  A key passage in the report says this:

"The Scottish Government estimates the bill could cost insurers, local authorities and Government departments between £5.5m and £6.5m, but research published by the UK Government, based on the calculation that around 5,000 people in Scotland are known to have pleural plaques while there could be thousands more unknown cases, has placed this figure at anywhere between £1.1bn and £8.6bn."

Scots Law News has some doubts about these figures, much as it has doubts about the Bill itself (see previously herehereherehere and here).  Does anyone know what, if any, damages would be recovered by someone who merely had pleural plaques and no other harm?  One doubts whether the Scottish courts would depart from their long-established traditions and start awarding mega- (or any) damages in cases of that kind should the Bill be passed.

Occasional Scots Law News correspondent Dr Martin Hogg is also down to give evidence about the Bill to the Justice Committee on 2 September.  We understand that he too is not an enthusiast for the Bill, on the grounds of general legal principle, which should (but won't) be a stronger argument than dubious arguments about money.  Also appearing will be Frank Maguire, who will probably offer a different perspective based on morality as much as law.  Watch this space. 



RSS on the Scottish Courts website judgements database

The blog of Jonathan Mitchell QC for 30 August 2008 usefully draws attention to the Scottish Courts website's adoption of an RSS feed system on its judgements database, which will at last make it slightly easier to keep electronically abreast of the doings of our courts.

Those who don't know what RSS is should consult Jonathan's blog (and note that you can get an RSS service from Scots Law News – look at the top right of the page for an orange blob and click thereon). 

As Jonathan rightly points, by itself RSS is not enough for users of the court website.  What it does for the moment is simply give you the case names as links to the full text of the various court opinions as they appear on the site.  What is also needed (and provided on many other court websites – all, Scots Law News thinks, outside the UK – the South African Constitutional Court is an especially good example) is a brief indication of the subject-matter of the case in the fashion of the digest headings that appear at the start of formal law reports and also in indexes thereto.  Even the House of Lords (and presumably in the fullness of time the replacement UK Supreme Court) gives subscribers email alerts when speeches are published. 

There have been heroic individual attempts to fill the blatant gap in Scottish courts' services: the Case Check service (although Edinburgh University's filters determinedly "spam" its emails, at least to this subscriber) and Jonathan Mitchell's own weekly update.  But it would be good if the Scottish judgements database – which was a leader in the field when set up in the late 1990s – could be got up to the level of sophistication which most lawyers would now take for granted from other current information and intelligence sources. 

Fairness of bank charges: a sist for the Scottish legal system?

Regular readers of Scots Law News will recall previous posts on the sisting of Scottish sheriff court cases in which the fairness of certain bank charges is being challenged, to await the outcome of a test case on the same issue in England; a practice against which Sheriff Derek Pyle of Inverness had heroically held out on the basis that what happens in England cannot determine what should happen in Scotland (Nos 675, 745).

The latest development to come to the notice of Scots Law News, courtesy of consumer law correspondent Professor Kenneth Reid CBE, is a decision of Sheriff Nigel Morrison sitting in Edinburgh, Morton v Bank of Scotland plc, issued on 26 August 2008.  The pursuer began his challenge to certain charges on his personal and business accounts in April 2008.  The defender bank argued for a sist, to await the outcome of the continuing English test case.  It appears that that case is now going ahead on two fronts: (1) the banks' appeal against Andrew Smith J's decision that the charges in question are caught by the Unfair Terms in Consumer Contracts Regulations 1999; (2) a further argument before Andrew Smith J on other terms and conditions used by the banks, where a decision is expected in September 2008.  It seems that the terms and conditions on Mr Morton's personal account are the same as those currently before Andrew Smith J.  Sheriff Morrison granted the sist on 16 July and has now given his reasons for doing so.

The four main factors identified by the learned sheriff are –

  • overlap in that the English case was to deal with the same terms and conditions; 
  • similarity of the law to be applied in the cases (the Unfair Terms Regulations apply throughout the UK, while the law on penalty clauses is similar in the two jurisdictions (in particular both have the rule that a clause can only be a penalty if it becomes enforceable on breach of contract);
  • likelihood that the courts in the two jurisdictions would reach similar results and that if not, the differences would be resolved in a uniform way ultimately by the House of Lords;
  • uncertainty if there were conflicting decisions in the two jurisdictions, which would be unhelpful to the UK banking business.

However although Sheriff Morrison was "impressed by the selfless concern of the banks for the administrative burden of the courts" (para 18), he was ultimately "unmoved" by their argument that this too was a ground for sisting the action.

Sheriff Morrison notes the decisions of his brother Pyle in Inverness and accepts that "prima facie it is a matter of right to either party to insist upon a cause going on and that the onus lies on him who wishes to stop it" (para 20).  That onus, he thinks, has been discharged by the banks in this case; "it does not follow," the sheriff adds "simply because the Office of Fair Trading or anyone else raises for whatever reason a test case, or agrees with others to raise proceedings, in England, that proceedings in Scotland raising similar issues will be sisted" (para 20).

There are several troublesome issues here.  Sheriff Morrison's factors are certainly all pertinent points; but one has to ask what were the assumptions of the parties raising the English test case, in particular the Office of Fair Trading and the supposedly Scottish banks (who always trade under English law anyway).  Clearly there are issues in these bank charge cases that are UK-wide, and doubtless there will be other such cases in the future.  Is it beyond the wit of our legal systems to devise some joint procedure involving both Scots and English judges to produce rulings that will be binding in both systems?  Could this be a role for the new UK Supreme Court the launch of which is now not much more than a year away?  As things stand, the Scottish legal system is not even being treated as a junior partner in the UK legal structure by either the OFT or the banks, and Scottish litigants are being denied the opportunity to have their complaints considered with the compliance of several of the Scottish judges.  Someone in a position to do so ought to be doing something about it.

Send for a Scots lawyer again

That oft-repeated solution to a problem – send for a Scots lawyer – came into its own once again on 22 August 2008, with the appointment of Lord Bonomy to take over as a judge in the Yugoslav war crimes tribunal in the preparations for The Hague trial of Radovan Karadzic.

Karadzic, who was brought before the tribunal following his arrest earlier in the month, complained that the Dutch judge initially assigned to his case had an anti-Serb bias, and the tribunal president, Fausto Pocar, then moved to bring in Lord Bonomy. 

It is not the first time Lord Bonomy has been called upon to sit in the tribunal.  He took part in the trial of Slobodan Milosevic, which was aborted when the accused died in 2006.  See No 349.

For other previous occasions of this practice of sending for a Scots lawyer in times of need, see Nos 342454 and 707.  It is possibly worth noting in this context that Alistair Darling, advocate, is now Chancellor of the Exchequer.  Surely there could be no greater reassurance that we will eventually get out of the credit crunch.  Maybe.

All-female Division’s decision

Back on 5 June 2008 Scots Law News noted the first-ever sitting of an all-female Division in the Inner House of the Court of Session, and can now belatedly report the publication of their unanimous decision on 16 July 2008.

The case, Wise Property Care Ltd v White Thomson Preservation Ltd [2008] CSIH 44, was not a straightforward one.  In 1976 W and T set up a company called White Thomson Preservation Ltd, carrying out business in property preservation services.  In 1983 W and T went their separate ways, trading respectively as WTP (Northern) Ltd (WTPNL) and WTP (Southern) Ltd in different regions of Scotland.  W1 was joined in WTPNL by his three sons, E, G1 and G2.  In 2002 the sons left and set up a new company called White Preservation Ltd (WPL); E left this in 2004.  In 2005 W retired and WTPNL was dissolved.  In 2006 G1 and G2 sold the business and assets of WPL to Wise Property Care Ltd; Wise successfully ran the business until late 2007 as “White Preservation, a division of Wise Property Care Ltd”.  WPL’s name was first changed to “Gragav Ltd”, then the company was dissolved.  Wise separately set up a company called WPL but it never traded.  In 2007 E set up a new company called White Thomson Preservation Ltd, adopting the business get-up of his father’s former company and undertaking to honour the guarantees issued by that company.  The court accepted that in effect E was reviving a dormant business.  Wise sued E’s company for passing off.  Interim interdict was granted by the Lord Ordinary on the balance of convenience, and the Division of Ladies Paton, Smith and Dorrian refused the reclaiming motion.  Wise had built up goodwill in the “White Preservation” name; the companies were trading in the same business and region; consumers were confused, although local property professionals such as solicitors were not; and White Thomson Preservation Ltd was effectively a newcomer or interloper, the interests of which should be given less weight than those of the established business. 

It is worthy of note that although the defender was a ‘newcomer’ it was in fact the only one of the two companies involved which had within its operation a member of the White family which had given its name to the business acquired by the pursuers.  Their Ladyships clearly have some nagging doubts on this, but can see no reason to interfere with the Lord Ordinary's exercise of his discretion on the material before them.

Captain Calamity keeps up with the Times

Not content with New Statesman coverage, Stuart Hill, self-proclaimed steward of the unilaterally declared state of Forvik in the Shetlands, has broken into the pages of the Murdoch press with a story in The Times for 18 August 2008.  

Most of the detail will be familiar to regular readers of Scots Law News – see here, here and here.  The man from the Times (its Scotland correspondent, David Lister) does offer updating detail, however; some of it more than some readers will want to know, for example on toilet arrangements on Forvik and the composting lavatory project.  But we also learn that three other Shetlanders have paid Mr Hill two Forvik gulde each to become land-owning citizens of the state (meaning that they have a token plot of land, a share of the foreshore, and a seat in the Forvik “ting” [parliament or assembly] once established), while around 100 non-Shetlanders have paid one gulde each for honorary citizenship.  A gulde is apparently worth £60, although how the rate of exchange is calculated (or indeed maintained in today’s volatile currency markets) is not made clear in the Times story. 

Scots Law News can add, following perusal of Mr Hill’s “Shetland Conversation” website, that a further source of income for the campaign arises from an opportunity to sponsor a tree on Forvik


The proposed commercial development of the huge but sensitive Caltongate site in Edinburgh’s Old Town, already under challenge as incompatible with the city’s World Heritage Site status, is now also under attack by way of European Union competition and public procurement rules.

Mr David Black, whose previous forays in this area include initiating the EU investigation of the Scottish Parliament procurement, has complained to the European Commission that Edinburgh Council supplied part of the site to the developer Mountgrange without first putting it on the open market, and that Jim Lowrie, the council’s planning convener, commented on the scheme prematurely in the local media (although Mr Lowrie has been cleared of the latter allegation by the Standards Commission for Scotland).

The Commission ruled on 13 August 2008 that Mr Black’s complaints were admissible, and investigation has now begun.  Commission officials will thus join UNESCO investigators looking at the World Heritage Site question.  UNESCO will begin its work in November, and according to the BBC the city council has been warned not to permit any further development until that task is complete.

The Caltongate development will include a five-star hotel, a conference centre, and shops, offices and homes.  The site is certainly a massive one, as the photo below shows.












The site is also next door to the Council’s new HQ, which itself scarcely inspires enthusiasm amongst aficionados of the Old Town’s admittedly variegated charms.












For those in search of more detail, Scots Law News investigations have revealed a Caltongate Information Office in St Mary’s Street, open three days a week from 10 until 4:


There is also a website promising a development which “changes the entire dynamic of a modern city”.  For other views see the websites of the Canongate Community Forum, the Cockburn Association, and the Edinburgh Old Town Association.  Keep up to date as well with the Independent Republic of the Canongate blog.   But maybe the credit crunch, which seems to be doing for the Scottish construction industry big-time at the moment, will have the last word on all this.


What price free expert advice? An MP finds out

The Scotsman for 9 August 2008 reported that Kilmarnock Sheriff Court had ordered Brian Donahoe, MP for Ayrshire Central, to pay an electrician’s call-out fee of £64 following an action brought against him by DSM Electrical.

The underlying story was that Mr Donahoe’s freezer malfunctioned in January and he phoned DSM after seeing that the company’s phone book listing offered “free expert advice”.  After a telephone conversation about the freezer problem, Mr Donahoe requested an on-site inspection by DSM, which duly took place.  DSM then billed him for the call-out charge, while Mr Donahoe argued that he had understood the inspection to be part of the free expert advice.

Sheriff Brian Adair found against Mr Donahoe in a judgement which Scots Law News has yet to trace on the Scottish Courts website, despite the Scotsman quoting the sheriff as saying the case involved “interesting points”.  The essence of his judgement is also quoted: “I consider that if a member of the public asked a tradesman to attend they could expect to pay a call-out charge.”  As well as the £64 fee he ordered Mr Donahoe to pay expenses of £61.

Mr Donahoe issued a statement saying, “You should be very careful about what tradesmen say in adverts.”  Dale McNair, owner of DSM, said:  “It’s a victory for small businesses and the working man.”

Changes at the Scottish Law Commission

It was announced on 15th August that Patrick Layden QC will become a Scottish Law Commissioner with effect from 1st September 2008, replacing Professor Gerry Maher QC whose term of office finishes on 31st August 2008. 

Professor Maher's time at the Commission has been book-ended by two government references, on poindings and warrant sales and the criminal law references following the collapse of the World's End murder trial.  During his tenure Professor Maher has been a lead commissioner on substantial projects on diligence, largely implemented by the Bankruptcy and Diligence etc (Scotland) Act 2007,  and criminal law – including the projects on sexual offences ( a bill implementing the Commission report is currently in the Scottish Parliament) and insanity and diminished responsibility.

Mr Layden has had a distinguished career of public service as a legal adviser and draftsman of primary legislation, and worked in the immediate aftermath of devolution as legal secretary to the Lord Advocate . 

The government press release announcing Mr Layden's appointment stresses his work in criminal law and criminal justice, no doubt taking into account the current projects of the Scottish Law Commission.

Cockerel Wars: The JP Strikes Back

Regular readers will recall Charlie the cockerel, whose 30 decibel call disturbed the sleep of neighbours in Selkirk (Cockerel Wars: The Phantom Menace).  Attempts to obtain an anti-social behaviour order were put on hold following agreement between Charlie's owner – Kenneth "Ozzie" Williamson – and the neighbours that Charlie be kept in a lightproof shed during evening hours (Cockerel Wars: A New Hope).  However, as we reported in January it was alleged that the court order buttressing this agreement had been breached and a report had been sent to the Procurator Fiscal. 

Mr Williamson appeared in the Justice of the Peace Court in Selkirk in early August and admitted breaching the court order.  He was meant to have erected a lightproof shed to house  5 year old Charlie (and geese) in a field some distance from a local bed and breakfast establishment.  Mr Williamson erected the shed in his back-garden, breaching the Civic Government (Scotland) Act.  It is reported that Mr Williamson will be sentenced in early September.