First Calman Commission Report

The Commission on Scottish Devolution chaired by Sir Kenneth Calman issued its first report on 2 December 2008, ruling out full fiscal devolution as incompatible with remaining in the United Kingdom.    

The conclusion is not altogether startling, given the origins of the Commission; and its remit precluded it from looking at the possibility of Scottish independence and the fiscal models that might apply in that situation.  No such constraints hampered an independent report by The David Hume Institute of Edinburgh, entitled Options for Scotland’s Future: The Economic Dimension and published a few days before Calman, in which this question is discussed in a full and non-partisan way. 

The Calman Commission finds that devolution has public support in Scotland, but thinks there is a need to develop more formal mechanisms by means of which inter-governmental relations within the United Kingdom might be enabled to work more effectively.

The final report and the Commission’s final recommendations are expected in 2009. 

Scottish Human Rights Commission launches

The Scottish Human Rights Commission launched at the beginning of December 2008, with Professor Alan Miller as its first chair.

The other members of the Commission are Professor Kay Hampton, Ms Shelagh McCall and Mr John McNeill.  The Commission’s first act is the publication of a consultation on its role, with responses being sought by 31 March 2009.

The Commission is co-located with Scottish office of the United Kingdom Equality and Human Rights Commission, at Optima Building, 58 Robertson Street, Glasgow G2 8DU.  This may help in establishing the respective roles of the two bodies, since the UK Commission makes some play on its website of its position in Scotland and its Scottish Commissioner, Morag Alexander.  

One issue the Commission may have to face early on is a renewed onslaught on quangos and “tsars” in Scotland.  The Scottish Parliament Corporate Body is of the view that six currently in existence – the Office of the Ombudsman, Information Commissioner, the Standards Commissioner, the Children's Commissioner, and the Public Appointments Commissioner, as well as the Scottish Commission for Human Rights – could be reduced to three, one responsible for complaints and standards, the second with questions of rights, while the Information Commissioner would be retained as a separate post.  The current commissions employ 96 staff in total.  The Cabinet Finance Secretary John Swinney thinks the idea has merit.  See the Review of SPCB Supported Bodies on the Scottish Parliament website.

Seller’s survey introduced

The long, but perhaps not eagerly, awaited system of seller's survey (or Home Reports) was introduced on 1 December 2008 against the background of a stagnant housing market, falling prices and Cassandra or Private Frazer-like wailings from housing market professionals.

The system under which the seller provides a quite detailed (and therefore expensive – between £300 and £800, it is said) report to its prospective purchasers, covering more matters than was usual in the previous system of buyer surveys, is intended to encourage especially the first-time purchaser.  But the professions are worried that sellers will be deterred from putting their properties on the market in the first place, especially if reports have to be renewed to remain current when many properties are taking a long time to sell.

The spokesman for the Scottish Law Agents Society, Ian Ferguson, was quoted as saying "Today is Black Monday. It's the birth of home reports but, quite possibly, the death of the Scottish property market.  I predict that home report costs will become as despised as the Poll Tax."  Whatever, there was no rush to market before the new rules came into effect by sellers anxious to evade the new impost.


Do fifty, get one month less

Sheriff Richard Davidson of Dundee, who has come previously to the notice of Scots Law News (see here and here) rewarded the recidivism of a serial shoplifter on 26 November 2008 with a 25% discount on his jail sentence. 

John Barrie Hendry had admitted stealing £30 worth of shampoo from the Lochee branch of Boots, his fiftieth conviction for such offences.  Sheriff Davidson said this “merits a special award of some sort, so I’ll make it three months jail instead of the four I had intended to give you.

Mr Hendry is aged 35, so has plenty of time to make his century and get that lifetime achievement award.  Sheriff Davidson, of course, was our Sheriff of the Year in 2004.

Error in the substantials: contracting not?

Following September’s revival of the postal acceptance rule, another favourite of law students studying contract, the invalidating effect of error, leapt into life as well in November 2008.

It all began with a BBC News report on 5 November about how a person who bought a framed Joan Eardley charcoal drawing entitled “Boy with Big Boots” for £22,500 sent it for cleaning, whereupon it was discovered that concealed behind the sketch within the frame was an Eardley oil painting depicting a young boy and worth about four times as much as the drawing.  The views of the seller were not made public, but the anonymous buyer was said to intend to keep both works in his private collection.

Next came the decision of Sheriff Principal J A Taylor in McLaughlin v New Housing Association, 30 October 2008, published 11 November 2008, Glasgow Sheriff Court.   The case was about the exercise by a tenant in social housing of the right to buy under the Housing (Scotland) Act 1987.  The parties agreed a sale price which was produced by a miscalculation on each side under the statutory formula for determining it.  The Sheriff-Principal held that this was a case of mutual (in the sense of shared, or common) error, and that being as to price, it was in the substantials of the contract; meaning that the contract was void.  He relied mainly on McBryde on Contract and Hamilton v Western Bank (1861) 23 D 1033 to support this decision.

Finally, Lord Brodie issued his opinion in Khalid Parvaiz v Thresher Wines Acquisition Ltd [2008] CSOH 160 on 19 November 2008.  Here shop premises were sold by roup, the pursuer at least believing that the subjects included toilet facilities which could only be accessed by way of the shop, when in fact the toilets were not included in the titles.  There is some ambiguity as to whether the pursuer was arguing that this error made the contract void ab initio or merely voidable; but the error being as to the subject-matter, it seems to have been in the substantials.  Lord Brodie allowed the case to go to proof.  The defender had argued that the error being unilateral and uninduced it was irrelevant.  The pursuer argued that the error was either mutual or unilateral and that the defender had not acted in good faith.  Lord Brodie observed that the mere existence of error was not enough to invalidate a contract: there had to be, in Professor McBryde’s phrase, “error plus”.  Hamilton v Western Bank was directly in point and in the pursuer’s favour.  Either the defender was also unaware of the titles’ non-inclusion of the toilets, in which case there was mutual error, with the “plus” factor being its shared nature; or the defender was aware but did nothing to make the position clear to the pursuer before the roup, in which case this lack of good faith might constitute the necessary “plus” enabling the pursuer’s unilateral error to invalidate the contract.  He noted that the pursuer did not suggest that the defender had made any misrepresentations or had known of the former’s error and taken advantage of it.  An inquiry into the facts was necessary before any decision could be given.

What then of the Eardley drawing/painting case, where again the parties shared the error that the subjects sold consisted of a drawing only, rather than a drawing and a painting?  Is the buyer entitled to keep his windfall?  Gloag & Henderson, 12th edition (2007) has the following at para 6.24, under reference to the case of Dawson v Muir (1851) 13 D 843: “[T]hough the point may not be settled beyond question – it is conceived that a sale will stand though the article turns out to have a value which neither seller nor purchaser suspected.”  Dawson is cited and discussed in McLaughlin.  A kiln was sold for £2, with neither party realising that it contained lead worth £300.  It was held that the sale included the lead.  Sheriff Principal Taylor suggests that it was not so much a case of mutual error as one of mutual ignorance, and thus distinguishes it for the purposes of his decision in McLaughlin.  But the distinction between error and ignorance may be rather a fine one here, given that both are about gaps between reality and what people believe to be reality.  How much difference is there between what you think you know and what you just don’t know?  Perhaps Donald Rumsfeld could tell us, but his celebrated dictum on what we don't know doesn’t seem to be a good platform from which to begin legal analysis (see also here for further Rumsfeld-isms). 

Two final observations.  One is simply the very far-reaching nature of Lord Brodie’s suggestion that absence of good faith may be a “plus” factor supporting the invalidating effect of a party’s unilateral error, especially if it goes beyond the situation where the other party knows of the error and takes advantage of it.  The second observation is that both Sheriff Principal Taylor and Lord Brodie follow Professor McBryde in referring to shared error as mutual.  It is respectfully suggested that it is better to describe such errors as “common”, and to reserve the label “mutual” for those (rare) cases where the parties attribute different meanings to some phrase in or term of a contract and are each unaware of the other’s understanding, and the court cannot resolve which is to be preferred even applying the ordinary objective analysis of such matters (see Gloag & Henderson, para 6.23). 

Drumlanrig Da Vinci Madonna case update

The trial of five men charged with conspiring to extort money from the Duke of Buccleuch for the safe return of his stolen Leonardo da Vinci painting will start on 30 March 2009, it was decided on 17 November 2008. 

Four of the five accused, who include Scottish solicitor Calum Jones, have pleaded not guilty, while the fifth has entered no plea until a defence of entrapment is investigated.

The painting, Madonna with the Yarnwinder, was stolen from the Duke’s Drumlanrig Castle in Dumfries-shire in 2003, and was recovered at the Glasgow offices of HBJ Gateley Waring in October 2007.  The charges state that the accused said the painting would not be returned unless £2 million was deposited in a client account at Marshall Solicitors of Skelmersdale in Lancashire and a further £2.5 million in a Swiss bank account.

A little water for your whisky, sir?

The Daily Record for 15 November 2008 reports that a whisky firm is claiming £184 million from Moray Council because a flood prevention scheme will harm its spring water supply.

The claim is being made by Gordon & MacPhail, owners of Benromach Distillery in Forres, on the basis that flood defence work at the Burn of Mosset will have a significant long-term cost for the company in order to protect water quality.  They seek compensation of £184 million, a sum which exceeds the council’s entire annual budget.  Gordon & MacPhail say that “The figure mentioned is a calculation requested by the district valuer and Moray Council, using the district valuer's own formula.”  The council comments that negotiations over the compensation are “at an early stage”. 

Law Society of Scotland education consultation goes on

The Law Society of Scotland published its latest consultation on solicitors’ education and training, entitled The Way Forward, on 14 November 2008.

The consultative process has been going on for a while and, at least at first blush, the proposals don’t seem to contain much that’s new or different from we have already: a law degree, followed by the Diploma and a two-year traineeship including a programme of structured learning (together relabelled as PEAT 1 and PEAT 2, the acronym standing for “Professional Education and Training Programme”). 

The main change from the status quo in all this appears to be the replacement of the PCC with the “programme of structured learning” during the traineeship.  This and everything else would have stated learning outcomes “underpinned by robust and rigorous assessment requirements and appropriate accreditation schemes”.   In the degree programme this might involve the use of “practice-based questions”. 

The qualifying law degree would have to include at least 240 credits, of which at least 190 would be in professional subjects, taught at levels 7 or 8.  This seems to provide for what is often known now as the “accelerated LLB” – that is, the LLB taken as a second degree in two years – and to leave unaffected the 480-credit Honours degree typically taken by most school-leavers. 

One other thing which would disappear alongside the PCC would be the Law Society’s professional examinations, to be replaced by a “graduate-level non-law degree route” not necessarily involving a pre-Diploma training contract.  This might be interesting. 


Pleural plaques law contrary to human rights?

The Daily Telegraph for 9 November 2008 reported that insurers plan to challenge the consistency of the Damages (Asbestos-related Conditions) (Scotland) Bill with the European Convention on Human Rights.

It appears that the Association of British Insurers will argue that the Bill is not compatible with Article 6 of the ECHR (right to a fair hearing) or Article 1 of the First Protocol (property rights).  But Telegraph correspondent Joshua Rozenberg is surely right to question the reasoning:

“Since the Bill would merely restore the law in Scotland to what it had been before the law lords’ ruling — and still is, on a strict view of precedent — it is difficult to argue that the insurers are being deprived of a “fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.  Similarly, it does not seem that being required to pay claims in Scotland that they would not have to meet in England and Wales is denying these companies the “peaceful enjoyment” of their possessions. It might just be possible to argue that it is not "in the public interest" to deprive them of their possessions — another requirement of Article 1, Protocol 1 — but this, too, seems a little far-fetched.” 

BEBO is a public place, at least for posing with a sword

A man seen posing with a sword on BEBO, the social networking internet site, pled guilty at Kilmarnock Sheriff Court on 7 November 2008 to possession of a sword in a public place.

Anthony Bowman (19) was convicted of a contravention of section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 between 1 January 2006 and 14 July 2008.  His case was reported to the Procurator Fiscal in Kilmarnock as part of Operation Access, a Strathclyde Police campaign against violence launched in July 2008.  This involves trawling the Internet in a move to uncover criminal activity, supporting the drive to reduce crime and disorder across the region.  Intelligence gathered in this way is then passed to the Violence Reduction Taskforce which works closely with local community police officers to identify those pictured online. 

Bowman was fined £200.

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