Month: April 2009

The Damages (Asbestos-related Conditions) (Scotland) Bill completed its passage through the Scottish Parliament on 11 March 2009. 

It appears to be still unclear what the financial consequences of the Bill will be for the Scottish Government, the Stage 3 debate throwing no further light on that issue.

The Conservatives abstained on the passage of the Bill but the Parliament was otherwise unanimous in putting it through.  There is talk of a challenge to the Bill from the insurance industry but it is not clear what the legal basis for such a challenge might be.

Meantime, down in Westminster, a Private Member's Bill, with the original (in the copyright sense) title, The Damages (Asbestos-related Conditions) Bill, received its First Reading on 26 January 2009.  The Bill provides that certain asbestos-related conditions are actionable personal injuries.  A Second Reading will take place on 24 April.

Sheriff Rosaleen “Rosie” Morrison, one of the legendary figures of the late twentieth-century Scottish legal system, died on 10 March 2009, aged 77. 

When called to the bar in 1972, Rosie Morrison was only the fifth woman to have done so.  Flamboyant and quick-witted, she became famous as a sheriff in the 1980s, and the stories about her unconventional approach and repartee with accused and lawyers appearing before her during that time are legion.  This explains why unusually for a sheriff her death was noticed, not only in The Scotsman, The Herald and the Edinburgh Evening News, but also as a news story in the Daily Record and, even more strikingly, in the Times. 

Scots Law News has no personal touch to add, but particularly enjoyed the story about a Lord President’s legs. 
 
 
 
 

Thanks to Bernard Boase for information that Steve Gough, the Naked Rambler, has been moved from Barlinnie to Perth prison, with an 11-day pause at Glenochil en route.

Gough has also changed his solicitor, who is now W James Smith of Turnbull McCarron Solicitors, Glasgow.

On 26 February 2009 the Court of Appeal dismissed the appeal of the banks in the great English test case about the fairness of certain bank overdraft charges: see Abbey National plc v Office of Fair Trading [2009] EWCA (Civ) 116.

The Court of Appeal essentially upheld the judgment of Andrew Smith J at first instance, finding the charges in question unfair under the Unfair Terms in Consumer Contracts Regulations 1999 (summarised here).  The court also refused the banks leave to appeal to the House of Lords, but that decision was itself the subject of an appeal which was upheld by the Law Lords on the possibly inauspicious date of 1 April. 

The Scottish actions that have been sisted to await the outcome of this English litigation must therefore remain in suspense, in all probability for another year.  Some old saying about justice delayed comes into the back of the Scots Law News mind, but of course the appellate process is not about delaying justice but ensuring it.  Let’s hope so.  Of course the whole thing could fold with the banks themselves, since those involved in the case include RBS, HBOS and Lloyds TSB; but we must wait and see.

Lord Clyde died on 6 March 2009 aged 77. 

James Clyde more than overcame the difficulty that might have been posed by being at the time he was called to the bar in 1959 not only the son of the then Lord President but also the grandson of an earlier Lord President.  Appointed to the Court of Session bench in 1985, he ended up as a Law Lord between 1996 and 2001.  Clyde also distinguished himself as chairman of the Orkney child abuse inquiry in 1991-92 and, after his retirement from the House of Lords, as Justice Oversight Commissioner in Northern Ireland (a role of vital importance in that country’s peace process).  Add to that his contributions to legal literature as author/editor of two editions of Armour on Valuation (1961, 1985, with J P H Mackay) and (with Denis Edwards) of the first Scottish text on Judicial Review (2000), and there is a pretty good case for seeing him as the greatest of the Clydes. 

A note in the Times on 31 March drew attention to a link with the London law firm Clyde & Co, of which Scots Law News had hitherto been unaware: the firm was founded in the early 1930s by Richard Arthur Clyde, who was an uncle of Lord Clyde and an English solicitor (a good way of escaping dynastic pressures in Scotland).  The firm started small and now has more than 1200 staff and offices in eighteen countries.

Lord Clyde’s death prompted an unusually large number of warm personal tributes from a wide variety of sources.  The elder editor of Scots Law News can add his own experience of Mr Clyde QC as he was when external examiner of the Edinburgh University Contract Honours course in the early 1980s.  His kindness then extended, not only to the students whose work passed under his scrutiny, but also to the young internal examiners whose pedagogical and assessment efforts were no less under his examination.  The principal memory is the frequency of Mr Clyde’s warm chuckle and his regular extension of the principle of benevolent interpretation to examination scripts – it is not so much what you say as what you really meant to say. 

The appointment of Dorothy Bain QC as Principal Advocate Depute was announced on 2 March 2009.  She is the first woman to hold the post, which she will take up in May.