Tartan Bill passes

The Scottish Register of Tartans Bill completed its progress through the Scottish Parliament on 9 October 2008.

The Bill is expected to receive Royal Assent before the end of the year, and the Register will come into existence in 2009.  It will be located at Register House at the east end of Princes Street, Edinburgh, and will be administered by the National Archives of Scotland.  The Court of the Lord Lyon will also have an advisory role. 

Scotland’s ex-Sir Humphrey for Judicial Appointments Board

On 6th October 2008 it was announced that Sir Muir Russell, Principal of Glasgow University and former Permanent Secretary in the Scottish Executive had been appointed as the chairman of the Judicial Appointments Board.  The appointment is for 3 years.

Announcing the appointment Justice Scretary Kenny MacAskill said:

“I am delighted to announce Sir Muir's appointment today. Under the guiding hand of its first chairman Sir Neil McIntosh, the Judicial Appointments Board has firmly established itself as part of Scotland's judicial system. In Sir Muir the independent panel that recommended this appointment have identified someone of experience and skill who is very well placed to take the Board forward, and in due course onto a statutory footing.”

When Chapter 3 of the recently passed Judiciary and Courts (Scotland) Bill comes into force, the board will become statutory and have a formal role in judicial appointments.

New Law Society Chief Exec a woman C.A.

On 3 October 2008 the Law Society of Scotland announced that its next Chief Executive would be Lorna Jack, who will take over from current incumbent Douglas Mill on 5 January 2009. 

Where Douglas Mill and other previous incumbents of what was earlier the position of Secretary to thewidth=170 Society were qualified solicitors, Lorna Jack is a Chartered Accountant. She graduated from Aberdeen University in 1982, with an MA in Accountancy and Economics, and qualified as a CA in 1984. Previous roles include head of National Food Industry Team, Scottish Enterprise; Head of Global Companies Research Project, Scottish Enterprise; and CEO/chief operating officer for Scottish Enterprise Forth Valley before her current position in Boston, USA, as President Americas, Scottish Development International, which she has held for the last six years.

Scottish Legal Complaints Commission open for business

The Scottish Legal Complaints Commission, set up under the Legal Profession and Legal Aid (Scotland) Act 2007, opened its doors at The Stamp Office, 10-14 Waterloo Place, Edinburgh, on 1 October 2008.

All complaints against legal practitioners must now be sent to the new Commission, which acts as a gateway and single point of contact for these complaints.  Complaints about conduct are passed to the Law Society of Scotland and the Faculty of Advocates who will investigate them, as they have done in the past.  The Commission also has the power to deal with complaints about the way the relevant professional organisation has handled an investigation.  In effect it replaces, but is more powerful than, the Scottish Legal Services Ombudsman.

Chief executive of the Commission is Eileen Masterman, formerly the Scottish Public Services Ombudsman, Chief Executive of Homes for Scotland and Director of the Royal Institution of Chartered Surveyors in Scotland.  The Commission is chaired by former Scottish Legal Services Ombudsman Jane Irvine, and lawyers amongst its eight other members include Professor Alan Paterson (Strathclyde Law School), David Smith (ex-Shepherd & Wedderburn), Margaret Scanlan (an accredited specialist in family law at Russells Gibson McCaffrey), and David Chaplin (ex-Anderson Fyfe). 


Judiciary and Courts (Scotland) Bill passed

The Judiciary and Courts (Scotland) Bill was passed by the Scottish Parliament at Stage 3 on 25th September 2008.  

In the final debate on the bill, Justice Secretary, Kenny MacAskill, summarised the import of the bill as follows,

“The Government is clear about the need for a strong, independent judiciary. The bill enshrines that independence in statute. It will give the Lord President additional responsibilities for the courts in Scotland and for the judiciary, together with a complementary leadership role in the strategic management of the administrative service on which he and his colleagues will rely. It will place the Judicial Appointments Board for Scotland on a statutory footing, which is important, and it will introduce a framework for a structured judicial complaints system.” (col 11271)

We will say a little more about the substantive content of the bill when it receives royal assent.

No room at the jail

George Munce from Auchterarder is a fraudster who claimed almost £10,000 of income support through claiming to be single.  On 25th September 2008 Sheriff Lindsay Foulis (previously in Scots Law News here) sentenced Munce to 240 hours community service but told his solicitor that Munce was “fortunate”.

As quoted on the BBC News website, Sheriff Foulis said of munce:

“He can consider himself fortunate, but in light of certain matters we keep trying to bring to the attention of the press with regard to certain numbers, I am prepared to deal with this by way of community service. Previously I would have had no hesitation in taking your client's liberty away from him. I should make it plain the maximum community service is imposed as a direct alternative to custody. We are told that prison populations are reaching crisis point and as a result – for a matter which I consider you well merit a custodial sentence – I am going to deal with it by way of the direct alternative.”

Sheriff Foulis’s comments followed evidence from the Auditor General of Scotland to the Scottish Parliament Audit committee on 24th September.  He told the committee that the safe limit for prisoner numbers was 8,126, but jails were housing about 8,137 inmates. 


Good faith negotiations and pre-contractual liability?

Aisling Developments Ltd v Persimmon Homes Ltd [2008] CSOH 140, issued 24 September 2008, is another case where the arguments focused on contract when perhaps they might have been better targeted on pre-contractual liability.

The facts were as follows.  Aisling was a company specialising in the identification of development opportunities, purchasing the relevant land and then re-selling it to developers after obtaining planning permission and carrying out site investigations.  In 2001 the company identified a site at Old Craighall, Musselburgh, East Lothian which would be suitable for the relocation which Queen Margaret University College (QMUC) was then seeking to make from its existing site at Clermiston in Edinburgh.  The site was owned by the house-builder Persimmon but its development was restricted by the site’s location in the Edinburgh Green Belt.  Aisling saw that the development potential for housing also might be unlocked by an educational development on the site.  There followed a complex series of negotiations in which QMUC and Persimmon came into negotiating contact but Aisling were in effect assured by Persimmon that they would have a contract and remuneration for their contribution to the contract which was ultimately agreed by the now University and Persimmon and under which the University acquired and built upon its new location.  But eventually Persimmon dropped Aisling altogether, with the latter in consequence suffering a loss of nearly half a million pounds. 

Aisling’s arguments that the negotiations had given rise to a contract were ultimately rejected by Lord Glennie after a learned and persuasive analysis of the relevance of “intention to contract” and “agreement on all the essentials” in determining when parties became contractually bound.  Lord Glennie does however refer with some disapproval to the conduct of Persimmon in the negotiations, which he refers to in para 62 as their “stringing along” of Aisling.  There was evidence, summarised at paras 36-38, of Persimmon assuring Aisling that a contract would be concluded between them and that there was no substantial disagreement on its terms.  But, says Lord Glennie, “the court is a court of law, not of business morality” (para 62).  His attention had presumably not been drawn to the long line of authority, going back at least to Walker v Milne (1823) 2 S 379 (the Melville Monument case), under which a party’s expenditure occasioned by reliance on another’s assurances that there is a contract between them may be recovered from the latter when the contract fails to materialise.  While a finding of liability under this head in Aisling would have extended the law, no great leap is involved (see MacQueen & Thomson, Contract Law in Scotland (2nd edn, 2008) para 2.95), and it would align our law with that of other jurisdictions in Europe (ibid, para 2.96). 

Lord Justice-Clerk Macdonald’s number plate

The late Lord Justice-Clerk Macdonald, who held office from 1888 to 1915, came back into the news in September 2008, not for his contribution to Scots law, but as the former owner of the first car registration plate in Edinburgh, S1.

The car number-plate which he purchased in 1903 was put up for sale by his descendants and went for nearly £400,000 at an auction held on 19 September.  The purchaser, who is from the English Midlands, apparently intends to display the plate on an old red Skoda. 

Sir John Hay Athole Macdonald, Lord Kingsburgh, nicknamed ‘Jumbo’, is best known today for his contribution to criminal law and his memoirs, published on his retirement under the title Life Jottings of an Old Edinburgh Citizen.  The Oxford Dictionary of National Biography notes that “in the development of motor transport [Macdonald] was an enthusiastic pioneer, and … president of the Scottish Automobile Association.”  There is a good deal on the subject of motor vehicles (and much else) in his Life Jottings.  Macdonald was also an enthusiastic inventor, a brigadier-general in a volunteer infantry brigade, golfer, rifleman and President of the Cockburn Association.  But it was said of him that, apart from matters criminal, on law he was “superficial and perfunctory”. 
Macdonald’s descendants include Andrew Macdonald, a senior partner in Edinburgh solicitors Blair Cadell (information for which Scots Law News is indebted to Professor John Cairns).


Mixed doubles, anyone?

Climate change in the structures of the Scottish legal profession continued with the 18 September 2008 announcement by the Faculty of Advocates that “mixed doubles” – advocates appearing in court with solicitor advocates – will be allowed with effect from 23 September.

The change in its rules follows discussions between the Faculty, the Scottish Government and the Office of Fair Trading.  No pressure, then. 


Professor John Usher 1945-2008

Professor John Usher, Salvesen Professor of European Institutions in the Edinburgh Law School 1995-2004, died in Exeter of leukemia on 13 September 2008.  He was 63 and on the brink of retirement from the Exeter Law School, where he had worked since 2004.

width=227Excellent obituary notices are published in The Scotsman, the Edinburgh Evening News, and the College of Europe website

Scots Law News can only add from personal experience during John’s initial period as a lecturer in Edinburgh between 1978 and 1984 that he was always more than ready to help younger colleagues in the development of their careers, especially in giving them publishing opportunities through his editorship of the Competition section of the Journal of Business Law.   Hence, thanks to his persuasive charm and interest, a lunchtime conversation led to a junior colleague quite unexpectedly writing something for John 
about the Monopolies Commission's protection of the Scottish banks from foreign takeovers.  Perhaps not the deepest thing ever written on the subject, it was nevertheless a breakthrough moment for the writer. 

Our deepest sympathy goes to John’s widow Jean. 


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