Summer ends now: miscellanea

Today is the first day of autumn, and Scots Law News bids the barbecue summer farewell with a few items that came to its attention when not focused on the Megrahi release (to which, no doubt, it will return).

First, on the Scottish Courts website has appeared the judgement of Sheriff J K Tierney of Aberdeen in Marjandi Ltd v Bon Accord Glass LtdAlthough posted on the website only on 9 July 2009, the judgement was actually handed down on 15 October 2007.  The case was about the very contemporary Commercial Agents (Council Directive) Regulations 1993.  For the purposes of applying the regulations the sheriff had to decide whether or contracts for the installation of conservatories or house extensions were for the sale of goods (if yes, the regulations applied).  The alternative analysis was that the contracts were for the supply of work and materials.  Beginning from the relatively orthodox starting point of the Stair Memorial Encyclopaedia article on "Building Contracts", Sheriff Tierney is led into discussion of Gaius' Institutes and its discussion of contracts for the use of gladiators and the manufacture of gold rings, and of Pothier's Treatise on the Contract of Hire.  He also discusses passages from Bell's Commentaries and Principles and the leading case of McIntyre v Clow (1874) 2 R 278, before concluding that the conservatory/extension contracts are not sales of goods but are rather contracts of locatio operis faciendi, to which the 1993 Regulations do not apply.  Scots Law News will have to leave it to our colleagues in the Edinburgh Legal History, Commercial Law and European Private Law blogs to comment on the law; but we do like to imagine the expressions of the litigants on finding their businesses being analogised with the supply of gladiators in ancient Rome.

Second, Scots Law News confesses to a great admiration of the recent book by Lord Rodger of Earlsferry entitled The Courts, the Church and the Constitution: Aspects of the Disruption of 1843 (Edinburgh University Press, 2008) (see reviews at (2009) 125 LQR 522; (2009) 13 Edin LR 173); but was nonetheless slightly surprised to find it cited in the opening paragraph of Lord Uist's opinion (published 31 July 2009) in Moderator of the General Assembly of the Free Church of Scotland v Morrison and others [2009] CSOH 113.  Perusal of the rest of Lord Uist's opinion, and to a further case cited in it, Free Church of Scotland (Continuing) v Free Church of Scotland 2005 SC 396 (Lady Paton), reveals that Lord Rodger will probably need to add a further chapter in any second edition of his book, to take account of the split in Free Church ranks that took place in 2000, and the consequences of which are being fought out in the courts much as happened in 1843 and again in Free Church of Scotland v Overtoun (1904) 7 F (HL) 1.  Lady Paton held in 2005 that the seceding ministers and members of the FCC were not entitled to the central funds and properties of the Free Church; and Lord Uist takes the same line with regard to the entitlement of the seceders to remain in occupation and possession of the church and manse at Broadford in Skye.  The basis of the FCC argument was their continued adherence to the fundamental principles of the Free Church, but Lord Uist held that if this argument was correct, "the result would be astonishing and lead to chaos … [T]he process of groups leaving the FC could go on ad infinitum and, where that process did not involve departure from fundamental principles, the court would be powerless to intervene to regulate property rights and the groups setting up parallel structures would just be left to get on with it" (para 75).  No doubt his Lordship was also relieved that the decision meant that he did not have to go into the fundamental principles concerned and decide whether or not they had been departed from!  Nor does there seem to have been any challenge of the kind that was made in the original Disruption cases against the Court of Session having any jurisdiction at all in cases of this kind.

Third, Scots Law News is grateful to cyber correspondent Dr Abbe Brown for drawing our attention to the judgment of Sheriff Principal B A Lockhart  at Ayr in Mackie t/a Aerial Photography v Askew, delivered on 11 August 2009 and holding that Ayr Sheriff Court had jurisdiction to determine a copyright infringement case in which the alleged infringement consisted of unauthorised posting of the Troon-based pursuer's aerial photographs of Largs on a commercial website advertising the defender's rental properties in Largs.  The pursuer had placed the photographs on his website, along with clear assertions of copyright and moral right claims, on his website to advertise his photography services.  The defender's argument was that the alleged wrong, if any had taken place, must have done so either in Largs or in the defender's residence at Wemyss Bay; in either case, the appropriate jurisdiction was therefore that of Greenock rather than Ayr Sheriff Court.  Sheriff Principal Lockhart finds that a basis for jurisdiction in delict is the place where the harm occurred and that this might be "anywhere that the defender's website could be seen", which included places within the jurisdiction of Ayr Sheriff Court.  the learned Sheriff Principal says he is "fortified" in his view "by a consideration of the recent textbook Contemporary Intellectual Property Law and Policy by MacQueen Waelde and Laurie … para 22.17".  No doubt the forthcoming second edition of that fine work, first published by Oxford University Press in 2007, will in turn be fortified by citation of the Sheriff Principal's decision at the relevant place.

Fourthly, and much more briefly, Scots Law News has been told that there is now a Facebook site for the support of the Naked Rambler.  Since Scots Law News is not a member of Facebook, or any other social networking website, we have been unable to verify the link, but are sure those of our readers who do network socially in cyberspace will let us know if it holds good.  Presumably it can only be a matter of time before Twittering too becomes part of the nude pedestrianism scene.

Finally, as a way of passing the idle summer days of the academic lawyer, Scots Law News has investigated what was the final Scottish appeal decided by the House of Lords.  The answer (on which, however, we stand to be corrected) seems to be Mitchell v Glasgow City Council [2009] UKHL 11, in which the speeches were published on 18 February 2009.  At least it was an interesting case in its own right, as noted here in Scots Law News.