Scottish courts asserting themselves

RAB v MIB (9th September 2008, [2008] CSIH 52 is an important decision on jurisdiction in family law matters and has seen the Inner House of the Court of Session reverse earlier sheriff court decisions that had seemed to cede jurisdiction to England. 

In 1996 the B couple married in Abu Dhabi.  They had one child in 1997.  The child had Down’s syndrome.  The couple separated in 2000.  From 1997 they had lived in Aberdeen but in September 2000 MIB left Aberdeen for London taking the child.  RAB did not consent to the child’s removal and had been unaware of plans to remove the child being in place.

Two months after arrival in London MIB was awarded a county court order preventing anyone from removing the child from MIB’s care.  This order was granted with RAB receiving no notice of the hearing. And it was granted without jurisdiction (a position unchallenged by the English Court of Appeal) as s 41 of the Family Law Act 1986 required one year’s habitual residence to found jurisdiction.  RAB unsuccessfully attempted to challenge the court order in the English courts (the Court of Appeal decision is reported at [2004] 2 FLR 741) despite the lack of any substantive hearing on the welfare of the child.

Meanwhile an action of divorce, with craves for contact, had been raised in the sheriff court in Aberdeen, and the defender pleaded forum non conveniens based on the hearings in England.  The plea was upheld by the sheriff and sheriff principal – partly taking into account circumstances of convenience to the defender and witnesses who could speak to the child’s welfare given MIB’s residence in London.

ON appeal to the Inner House RAB was a party litigant.  During argument reference was made to the English case of Spiliada Maritime Corporation v Cansulex Limited [1987] 1AC 460, a decision on forum non conveniens based largely on Scottish principles (see AE Anton with PR Beaumont, Private International Law (2nd edn, 1990) pp 213 – 215).

At p 474 of Spiliada Lord Goff said,

“The plea can never be sustained unless the court is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and for the ends of justice. … I feel bound to say that I doubt whether the Latin tag forum non conveniens is apt to describe this principle. For the question is not one of convenience, but of the suitability or appropriateness of the relevant jurisdiction. However the Latin tag (sometimes expressed as forum non conveniens and sometimes as forum conveniens ) is so widely used to describe the principle, not only in England and Scotland, but in other Commonwealth jurisdictions and in the United States, that it is probably sensible to retain it. But it is important not to allow it to mislead us into thinking that the question at issue is one of ‘mere practical convenience’”

The Inner House held that the sheriff court in Aberdeen was the appropriate forum for divorce, and accordingly given the responsibility of the court to take into account the welfare of the children of the marriage prior to the grant of decree of divorce, and the lack of a hearing on the child’s welfare in England, then Aberdeen was the appropriate forum (para 27).  As for the argument on convenience to witnesses this is summarily dismissed at para 28

“We would add, by way of amplification of the foregoing, that we are not moved by the circumstances that many of the witnesses whom the defender might wish to lead respecting the present circumstances of the child in England are based in that part of the United Kingdom. For his part, the pursuer points to there being witnesses whom he would wish to lead who are in Aberdeen. It is doubtful to what extent in considering the convenience of witnesses in a case such as this, the court can properly form a pre-judicial view of their relative importance. At all events, "witness counting" in a competition between Aberdeen and London does not, in our view, assist in any real way in a decision as to whether the court of primary jurisdiction should be displaced as being clearly and distinctly less appropriate than another forum having closer connection with the family dispute.”

As well as the jurisdictional issue Jonathan Mitchell QC on his blog noted one other topic.  He pointed out that the anonymised decision in the Inner House contrasted with sheriff court decisions published with the names of the parties.  Mr Mitchell draws attention to Practice Note, no. 2 of 2007, ‘Anonymising Opinions Published on the Internet‘, which came into force on 20 July 2007, and points out that –

“Strangely, this is not published anywhere on the Scottish Courts website, which inexplicably gives a completely different practice note as being no. 2 of 2007, but it is published in the Parliament House Book at C2063.”

but notes that there are no similar statements of policy for anonymity in sheriff court cases.


Scottish Parliament legislative programme

First Minister Alex Salmond set out a legislative programme of 15 Bills for the Scottish Parliament in a speech on 3 September 2008. 

Those which caught the eye of Scots Law News included –

  • Criminal Justice and Licensing Bill (under which inter alia under-21s would not be allowed to buy alcoholic drink at off-licences and minimum prices would be set for such drink)
  • Scottish Parliament and Local Government Elections Bill (under which it will become impossible to have same-day elections for the Scottish Parliament and local government)
  • Public Services Bill (under which umbrella the Government will attempt to revive the twitching corpse of Creative Scotland in place of the Scottish Arts Council and Scottish Screen; but to be despatched into oblivion is the Scottish Records Advisory Council, of which one of our contributors is Chair until 30 September 2008)
  • Children’s Hearings Bill (to bring the system under a single national authority)
  • Legal Profession Bill (to reform the structures of the legal profession in Scotland, while maintaining its independence)
  • Arbitration Bill (long-awaited modernisation of the law in this area)
  • Legislative Reform Bill (to change the ways in which the Scottish Parliament scrutinises subordinate legislation)


The end of New Town eras

Two moves took place amongst long-established Edinburgh solicitors’ firms at the beginning of September 2008 which in different ways brought eras of well over 100 years to an end.

width=240First, Skene Edwards WS was subsumed into the much larger Morton Fraser LLP (currently based in Queen Street, but soon to move to the Quartermile development at the old Edinburgh Royal Infirmary site).  This meant the closure of Skene Edwards’ office at 5 Albyn Place, where the firm had been since around 1888.  As Skene Edwards & Garson WS it had moved there from Hill Street, where it had been founded as Skene Bilton in 1858.  5 Albyn Place now has a sign outside the front door that tells the mournful tale. 


Second, Murray Beith Murray left its offices at 39-43 Castle Street.  The firm (then only Murray Beith) had moved to 43 Castle Street around 1861, having previously been across the road at No 50; after 1861 it then expanded up the hill towards George Street to take in Nos 41 and 39 (the former home of Sir Walter Scott).  width=240Scots Law News was alerted to the change by the removal from the Castle Street façade of the hanging floral baskets which brightened up an otherwise austere New Town scene.

The story of Murray Beith & Murray is not quite as terminal as that of Skene Edwards, since the firm continues in business at a New Town address, namely 3 Glenfinlas Street (just off Charlotte Square, for readers relatively unfamiliar with Edinburgh).  There is also a vestigial trace of the firm in Castle Street still, albeit on the Princes rather than the George Street side: No 7 (a very modern office building) is the home of MBM Commercial, which began in 2005 as an internal buy-out of the commercial practice at Murray Beith Murray. 


Psst, want to download a video about servitudes?

Scots Law News has previously expressed its support for the use of photographs within judgments.  Often the understanding of a case in property law particularly would benefit from clear understanding of the factual background.

One such case is Moncrieff v Jamieson 2008 SC (HL) 1  which considered the servitude of car parking and where the House of Lords decision turned, to some extent, on the “particular and unusual circumstances” ([per Lord Hope at para 36, see also Lord Scott at para 63, Lord Rodger at para 98 and Lord Neuberger at para 124). 

For those wishing to appreciate these particular and unusual circumstances the solicitors for the Moncrieffs, Messrs Inksters, have prepared a video presentation on-line.  The video includes aerial photographs of the site, a potted history of the case, and interviews with IG Mitchell QC, and Mr Moncrieff – outside the House of Lords on the day of the decision.

Lord Rodger on tedious judgements in the Court of Session

The August issue of the Journal of the Law Society of Scotland published a speech by Lord Rodger of Earlsferry, one of the Scottish Law Lords, in which he criticises Court of Session opinions for “spend[ing] an enormous amount of time simply recounting the submissions of the parties”, which practice, he says, “does not serve any very useful purpose”.

width=120The comments come as part of a discussion of the Civil Justice Review being conducted by Lord Gill.  Lord Rodger says that the judges should instead “summaris[e] the arguments very much more shortly and concentrate[e] on the point on which they have decided the case”.  He thinks the practice to the contrary is a relatively recent one; but Scots Law News thinks that it has been typical since at least the late 1970s but that there have actually been some relative improvements in recent years.

Be that as it may, there are several other interesting remarks in Lord Rodger’s piece entitled “Civil justice: where next?”.  In particular he echoes comments that he made in the servitude of parking case, Moncrieff v Jamieson 2008 SC (HL) 1 (see here), when discussing whether or not courts should be regarded as a resource of last resort.  He says he is “rather suspicious of any approach which treats the courts and judges as something to be avoided if a substitute can be found.”  He goes on, referring to another recent House of Lords case from Scotland, J & H Ritchie Ltd v Lloyd Ltd 2007 SC (HL) 89

“Society actually needs litigation.  If you regard it as an evil, it is, at the very least, a necessary evil.  Unless there continues to be a stream of litigation with decisions of high quality from the courts, individuals and businesses will lack guidance on all kinds of everyday situations.  If I buy a piece of equipment and it does not work, but the seller offers to repair it, what are my rights?  A difficult point, made somewhat easier, it is to be hoped, by the determination of two Scottish businesses to carry their dispute about a piece of farm equipment worth about £3,000 all the way from Jedburgh Sheriff Court to the House of Lords.  The parties deserved not criticism for failing to settle, but the gratitude of anyone who advises consumers, from CABx onwards.”

He concludes this point with the comment that “the problem in Scotland is not that we have too many cases, but that we have too few.”

Amongst other points, Lord Rodger also argues that the Court of Session should retain a first instance function and not be a purely appellate body, and that the judicial appointments system should aim only to appoint “the very best people”.  “By that,” he adds, “I mean the most able, intellectually and legally, the most skilful members of the profession – whether men or women, black or white, straight or gay, sheriffs or practitioners, it does not matter, and no preference should be given to members of any group.”

The speech was delivered at a conference “Delivering excellence in Scotland’s civil justice system” held in Edinburgh on 20 June.

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