Month: December 2008

Paul Cullen QC, Valerie Stacey QC, and Sheriff Iain Peebles QC have been appointed to the Court of Session and High Court bench, it was announced on 5 November 2008.

The appointments show that the Sunday Herald for 12 October was well informed in its speculation about possible appointees, although whether the appointments will cure its concern about the constitution of the higher judiciary is rather less apparent.  Gordon Jackson QC may also be wondering what he did to miss out this time.

As new judges appear, old ones leave the scene.  Sheriff Andrew Lothian (65) of Lothian & Borders resigned with immediate effect on 21 November 2008, after it emerged that a Sunday tabloid planned to run a story about his private life and visits to saunas.  He had been a sheriff for 29 years.

A Business Experts and Law Forum (BELF) set up by the Scottish Government to consider how high quality legal and dispute resolution services might contribute to the Scottish economy and business reported on 3 November 2008.

The report has many points of interest.  The Justice Secretary set up the Forum “with a remit to see what could be done to enable and encourage businesses, so far as appropriate: to choose Scotland as the seat of their business and legal activities; to look to Scottish lawyers for their advice; and to look to the Scottish courts as their dispute resolution forum of choice.”  Again, “Scotland's legal system and profession matters to our country's economic goals because:

• the profession in itself contributes around £1bn a year to Scotland's economy;
• high quality legal services are a key factor in a supportive business environment, particularly in encouraging firms to maintain head office functions in Scotland;
• being able to resolve disputes as effectively as possible is an important contributory factor to success in many areas of business."

Further, and “paradoxically”, “increasing harmonisation of Scots and English Law (driven, in part, by EU harmonisation) makes it more difficult to "sell" Scots Law where there is a choice between the systems.”  And “the procedural terms used by the Scottish courts are distinctive and historic, but arguably alienate those unfamiliar with Scots law. They may hinder the creation of an impression among businesses (both local and international) of the Scottish courts as modern, accessible and user-friendly. The fact that Scotland is an English language jurisdiction should give it a competitive advantage over many other international jurisdictions as a dispute resolution forum; retaining archaic procedural terminology could limit this potential advantage.” 

Much else in the report to provoke thought; and it is worth noting with regard to dispute resolution and the attraction of business to Scotland that an Arbitration Bill was promised in the First Minister’s legislative programme announced on 3 September 2008.  While taking the anti-harmonisation point, Scots Law News notes that the European Draft Common Frame of Reference published in February 2008 is not very far from Scots contract law in content but contains a clear and thoroughly modern system of terminology.  
 
 

The Scottish Government on 3 November 2008 granted outline planning permission for the development of a golf resort at Balmedie, Aberdeenshire, by Trump International.

The public inquiry into the proposed development found that the substantial social and economic benefits from the development outweighed any environmental detriments, and this played the most significant part in the decision of John Swinney, Cabinet Secretary for Finance and Sustainable Growth.

The Sunday Herald for 2 November 2008 reported a submission by the Court of Session/High Court judges to the Calman Commission on Scottish Devolution suggesting that the Lord Advocate’s present role should be reformed to separate public prosecution from giving legal advice to government.

The judges perceive the Lord Advocate's membership of the Scottish Executive and combination of roles as giving rise to numerous devolution issues in criminal cases, often leading to lengthy appellate processes culminating often only with the Judicial Committee of the Privy Council in Westminster – a wholly unintended outcome of devolution and the cause of undue delays in the administration of criminal justice.

Alternatives to separating the roles include amending the Scotland Act 1998 to exempt the Lord Advocate’s actions as a prosecutor from the need to be ECHR-compliant, or changing the law on criminal appeals; but these may not be easy, and the first at least not within the competence of the Scottish Parliament.

OSCR, the Scottish charities regulator, on 28 October 2008 ordered four leading fee-paying private schools to increase their spending on bursaries or risk losing their charitable status.
 
The schools concerned are Hutchesons' Grammar in Glasgow, Merchiston Castle in Edinburgh, Lomond School in Helensburgh, and St Leonards in St Andrews.  Each will have to do more to satisfy the “public benefit” test for charitable status under the Charities and Trustees Investment (Scotland) Act 2005.  For example, Hutchesons was criticised for only giving 49 bursary places this year out of a roll of 1,750 pupils.

 

Stuart Kennedy (aka Sergeant Eros) continues to keep Grampian Police and the sheriff courts of the north-east busy, with another arrest on 19 October 2008 and a court appearance on a separate charge on the 23rd.

Kennedy’s latest arrest for impersonating a policeman came in the early hours of a Sunday morning in Union Street, Aberdeen, and he was held by the police for some 24 hours.  During this time, Kennedy claims he suffered an asthma attack but was denied access to medical attention and treatment.  He has lodged a complaint against Grampian Police in respect of this.

The court appearance three days later was on a separate charge of impersonating a policeman and breach of the peace, but the case was adjourned until January 2009.  There are at least a couple of other cases understood to be pending.

It has also emerged that Kennedy is now employing a publicist, and plans to leave the world of stripograms for a career in shipping as soon as he has cleared off the backlog of charges against him.  Scots Law News had previously understood that Kennedy’s stripogram act was a way of paying for his university genetics studies, so finds the proposed move into a more nautical and commercial sphere of some interest.

 

A young falcon that died suddenly less than four weeks after purchase was conform to contract under the Sale of Goods Act 1979, an Edinburgh sheriff ruled on 17 October 2008.

The story of O’Farrell v Moroney was that the purchaser, whose hobby was falconry, bought the 8½-week-old, ¾ Gyr-¼ Peregrine falcon for £900 from the defender, who bred falcons for commercial sale.  The purchaser trained the bird successfully for 25 days, on the last of which it undertook a flight to 800 feet up to take food from a kite flown by its owner.  Its previous highest flight had been to 200 feet.  The bird died during the following night.  A post mortem revealed that the cause of death was E coli bacteraemia or colisepticaemia.  The purchaser argued that this must have been present at the time of sale and constituted a latent defect making the bird disconform to contract; accordingly he was entitled to repayment of the purchase price.  But the seller’s reply, that the bird’s sickness was due to a change in its exercise regime and that it had been healthy until its final, fatal flight, was preferred by Sheriff F R Crowe, who concluded as follows:

[33] … I have concluded that the pursuer having nurtured the bird carefully over-extended the bird on its final flight. This was to some extent understandable as the bird had pleased him greatly and was well up to his training schedule. However the final flight represented a step change upwards from the previous flight and in the event this proved too much for the bird which became stressed, developed E coli from its gut, was sick in the night and died before the pursuer found him the following morning.

[34] I can appreciate the pursuer's shock at this loss but it is clear from the autopsy findings and other evidence that the bird was in excellent condition at sale, thrived through the normal period where underlying illnesses and diseases would manifest themselves and did not die of an inherent defect that would have been present at the time of purchase.

[35] Accordingly I am satisfied that the pursuer has not proved his case that the bird did not conform at the time of delivery and I am satisfied that the defender has established that the bird died as a result of stress through being asked to perform an over-optimistic last training flight. It cannot be said that the pursuer was in anyway cruel or negligent. His evidence showed him to be a careful person with a great love and knowledge of his life-long hobby. It is unfortunate that his delight with a precocious bird which by all accounts was a magnificent specimen of its type came to this sad end. A significant factor may have been the pursuer's lack of experience with a 3/4 Gyr hybrid where breeding seeks to produce the optimum falcon but may also lead to a greater susceptibility to stress induced illness.

The case is of some interest because the pursuer’s claim was apparently based entirely on the relatively new section 48A of the Sale of Goods Act, under which, speaking broadly, goods must conform to contract at the time of delivery.  Despite s 48F’s statement that goods are disconform only if there is breach of an express term or the more familiar implied terms on satisfactory quality and fitness for purpose found in section 14 of the Act, the sheriff makes no reference to the latter.  The contract was a consumer one, since the seller was in the course of a business and the buyer was not.  One of the terms provided that the purchaser could recover the price within seven days of the sale if not delighted with the bird; but the sheriff felt no need to refer to unfair contract terms legislation to hold potentially applicable nevertheless the section 48A regime.  The pursuer relied on section 48A(3) because it helpfully provides that “goods which do not conform to the contract of sale at any time within the period of six months starting with the date on which the goods were delivered to the buyer must be taken not to have so conformed on that date”.  But does this by itself overcome an express term like that in the contract here?  None of this is to suggest that the decision is wrong; but the legal analysis could have been fuller.  One wonders too what the decision might have been had the pursuer sought one of the other (relatively unfamiliar) remedies available under the section 48A-F regime, such as replacement of the goods or reduction of the purchase price.

Scots Law News is sad indeed to report the sudden death of Professor Thomas Waelde of the Dundee University Centre for Energy, Petroleum and Mineral Law and Policy, following an accident on 11 October 2008. 

Professor Waelde was 59.  A fine obituary by his Dundee colleague Professor Philip Andrews-Speed can be found on the university’s website .  A memorial service was held on 12 December 2008.

The first year law student’s favourite, the postal acceptance rule, might be thought to have been a-dying in the age of email, but it came up for discussion in Carmarthen Developments Ltd v Pennington [2008] CSOH 139, opinion issued 24 September 2008.

The issue was, in simple terms, whether the rule applied to a notice exercising an option to purchase land.  Lord Hodge ruled that it did not.  Notice of the exercise of an option contained in a pre-existing contract was not an acceptance.  Lord Hodge observed that “While an option contract is very similar in effect to a unilateral promise to keep an offer open for acceptance for a specified period, the exercise of an option is not the acceptance of an offer but the exercise of a contractual right conferred by the option agreement” (para 14).  A good exam question quotation.  Discuss.