Late contenders for the most entertaining judgment of 2009

Sir David Edward, QC delivered the opinion of the court in the Extra Division decision in Multi-Link Leisure Developments Ltd v North lanarkshire Council on 30th December 2009, and made a late bid for the coveted award of Scots Law News's most entertaining judgment of the year. That this is achieved in a judgment on the interpretation of a clause granting an option in a contract of lease demonstrates its mastery.

Sir David begins his substantive discussion by considering the oft-cited passage on contractual interpretation by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, at 913.

"[23] We should say at the outset that we do not see the relevance for the present case of the observations of Lord Hoffmann in Investors Compensation Scheme Limited (supra) and Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251, which seem to be invoked – almost as a matter of ritual – in all cases involving construction of contracts. For our part, we have considerable sympathy with Professor McBryde's discussion of the problems that 'the Hoffmann approach' (in so far as it truly innovates on the previous law) may create for lawyers and clients (see McBryde The Law of Contract in Scotland, 3rd edition, paragraphs 8-25 – 8-27).

"[24] In any event, Lord Hoffmann's observations were made in the context of commercial contracts, whereas this case is about a Scottish lease of heritable property. The man on the Jubilee line on his way to Canary Wharf has less to say to us in this context than the Scots conveyancer with whose mindset we are more familiar."

The consideration of the clause, an option granted in a lease with an ish of fifty years, prompts some observations on what parties can really have in contemplation at the time of contracting:

"[29] We do not know – and the deed does not reveal – whether, in 1999, the subjects had any foreseeable development potential other than for development as a golf course. It is possible that, at that time, they had no other predictable use. But we should bear in mind that the lease was for a period of fifty years and that, in the nature of things, much might happen in that relatively long time frame to alter the value of the subjects. (The attractions of playing Augusta indoors with Wii may render some golf courses redundant on the slopes of Cumbernauld and elsewhere.) Why should it be assumed that the parties intended that all uses other than agriculture or open space that might become possible or desirable in the space of fifty years were to be left out of account?"

A search of the Scottish courts website confirms our suspicion that this is the first Scottish judicial reference to a Wii. And while there have been earlier references in English cases (eg British Board of Film Classification, R (on the application of) v Video Appeals Committee [2007] EWHC 3198 (Admin) (21 December 2007), and CDV Software Entertainment Ag v Gamecock Media Europe Ltd & Ors [2009] EWHC 2965 (Ch) (20 November 2009)) and in Northern Ireland (in McGrady v The Welcome Organisation [2009] NIIT 935_08IT (18 May 2009)) this is so far as we are aware the first wholly superfluous reference. Unless, of course, as Esther Rantzen used to advise on That's Life, you know different.

The principal competitor for most entertaining judicial comment was Lord Gill's pithy summary of transport developments in Edinburgh in Assessor for Lothian v Ministry of Defence, Army careers office [2009] CSIH 89 which considered the rating revaluation of properties in Shandwick Place in Edinburgh.

"The tramway project

"[3] From 1871 tramcars made their way along Shandwick Place. In 1956 the tram lines were dug up in the name of progress and the tramcars were replaced by buses.

"[4] Between March and July 2008 Shandwick Place was dug up in the name of progress for the laying of a tramway."


Sentencing in murder cases

We earlier noted the appeal by the Lord Advocate relating to the punishment tariff in murder cases. Judgment in the 5 judge decision was issued in late November 2009 in HMA v Boyle, Maddock, and Kelly [2009] HCJAC 89.

In the opinion of the court issued by the Lord Justice General new guidelines were issued. The key parts of the judgment are in paras [12] onwards

"[12] The Scottish legislation requires the sentencer to specify a punishment part in years and months – though, as we have said, it would be open to him or her to specify a period which was in excess, even well in excess, of the offender's anticipated lifespan. Although in one sense there is an equivalence between a punishment part and a determinate sentence of twice its length – the point of time at which the offender first qualifies for consideration for release on parole is the same – there is a measure of unreality about speaking of a determinate sentence of sixty years. It is difficult to envisage such a sentence being passed in Scotland; almost certainly in such cases a discretionary life sentence or an order for life long restriction would be passed. Moreover, murder is so special a crime that comparison with crimes for which there is no mandatory sentence of life imprisonment is of limited value.

"[13] In our view there may well be cases (for example, mass murders by terrorist action) for which a punishment part of more than thirty years may, subject to any mitigatory considerations, be appropriate. In so far as Walker and Al Megrahi may suggest that thirty years is a virtual maximum punishment part, that suggestion is disapproved. On the other hand we endorse the exemplification given in the penultimate sentence of paragraph [8] of Walker of the types of murder which might attract a punishment part in the region of 20 years. [for this passage see our earlier post]

"[14] The first sentence of paragraph [8] of Walker may carry the implication that a punishment part of twelve years is the norm or starting point for determining the punishment part in most cases of murder: the reference to "12 years or more, depending on the presence of one or more aggravating features" might be read as suggesting that "in most cases" the period would be longer than twelve years only if there was one or more aggravating features. We doubt whether it was the court's intention to set any such norm. In any event we would not regard twelve years as an appropriate "starting point" for "most cases of murder". A substantial number of murders – we have in mind in particular those arising from the use by the offender of a knife or other sharp instrument with which the offender has deliberately armed himself (discussed below) – would justify a starting point of a significantly longer period of years. A punishment part as low as twelve years would not be appropriate unless there were strong mitigatory circumstances, and a punishment part of less than twelve years should not be set in the absence of exceptional circumstances – for example, where the offender is a child.

"[16] We agree that at the present time knife crime is a scourge in the Scottish community and that the court should be acting, and be seen to be acting, in a way which discourages the carrying of sharp weapons, the use of which may lead to needless deaths. Sentences which may cause individuals to think more carefully before arming themselves and which reflect public concern at such killings are appropriate. Other than in exceptional circumstances we would expect punishment parts in cases of that kind to be at least sixteen years, and they might be significantly longer depending on the circumstances.

"[17] The foregoing are guidelines and should be treated as such. The circumstances in which murders are committed and the circumstances of offenders vary substantially. It is important that sentencers should retain sufficient discretion in selecting a punishment part as to allow them to take the particular circumstances appropriately into account."

The Lord Justice General goes on to note that a guilty plea in a murder case may see a discount in the sentencing. At paragraph [21] he proposes:

"We agree that in murder cases the maximum discount should be about one-sixth, reducing in some cases to nil. We also see force in there being a limit on the total number of years which can be discounted from a punishment part in a murder case. We agree that this should be set at five years – which, of course, could only be reached in very serious cases. "

First Scottish cases in Supreme Court

The first Scottish cases to reach the Supreme Court of the United Kingdom were argued before a bench comprising Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Brown of Eaton-Under-Heywood, and Lord Kerr of Tonaghmore from December 8th 2009. It is perhaps surprising that the cases are appeals not from the Court of Session but from the High Court of Justiciary.

While criminal appeals to the House of Lords were of course not competent at common law the Scotland Act 1998 permitted devolution issues in criminal cases to be appealed to the Judicial Committee of the Privy Council as a result of the Lord Advocate and Solicitor General being declared to be Scottish ministers under the 1998 Act, and accordingly subject to act within the competence of the devolution settlement (primarily meaning that the Lord Advocate in the prosecution of cases had to act in accordance with the principles of the European Convention on Human Rights). The Supreme Court of the United Kingdom under the Constitutional Reform Act 2005 merely inherits the pre-existing jurisdiction of the Judicial Committee of the Privy Council. The background to the exercise of this appellate jurisdiction is explained in a very helpful blog post by Aidan O'Neill QC at the UKSC blog.

The cases appealed to the Supreme Court are Allison v HMA, McInnes v HMA, Martin v HMA, and Miller v HMA. Thanks to the Supreme Court website it is possible to get some information on the issue argued before the court, a very welcome innovation.

The cases in Martin and Miller relates to whether s.45 of the Criminal Proceedings etc (Reform)(Scotland) Act 2007  (which increased the sentencing power of Sheriffs in respect of offences under Road Traffic legislation) is within the competence of the Scottish Parliament and therefore offer the first opportunity since the fox-hunting case to consider whether the Scottish Parliament has acted within its legislative competence. Allison and McInnes both relate to issues around the right to a fair hearing under Article 6 of the ECHR. The background to each of the cases is explained in a detailed post by Aidan O'Neill QC.

The first civil case was also heard by the Supreme Court in December as Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Brown of Eaton-Under-Heywood, and Lord Kerr of Tonaghmore heard argument in Gray's Timber Products Limited  v Her Majesty's Revenue and Customs.  This appeal relates to chargeable gains and is previewed by Aidan O'Neill Qc here.

Scottish Law Commission joint reports

An important part of the work of the Scottish Law Commission involves close co-operation with the Law Commission in England and Wales. The Commissions have recently published joint reports on consumer insurance and Consumer Insurance Law: Pre-contract Disclosure and Misrepresentation (Scot Law Com no 219); and Consumer Remedies for Faulty Goods (Scot law Com no 216).

The latter was prepared in response to a reference from the Department for Business, Innovation and Skills (formerly the Department for Business, Enterprise and Regulatory Reform) which asked both Commissions to look at simplifying the remedies which are available to consumers when they purchase goods which do not conform to contract, against the background of a proposed new consumer rights diorective from the European Commission published in Ocober 2008. The current law is in two spearate regimes. Under traditional domestic law, consumers are entitled to reject the goods and receive a full refund ("the right to reject"), provided they act within "a reasonable time". This has been supplemented by  the European 1999 Consumer Sales Directive, which states that consumers are entitled to a repair or replacement (or if the retailer is unable to repair or replace the goods in a reasonable time or without significant inconvenience the consumer may seek rescission of the contract or a reduction in price.

The joint Report makes recommendations on consumer remedies, in the light of the proposed directive summarised by the SLC as follows,

"recommend the retention of the right to reject; a normal period of 30 days for the right to reject to last; an entitlement to ask for a refund or price reduction after one failed repair or one failed replacement; retention of the protection for consumers who purchase goods with minor defects; the abolition of deduction for use in relation to rescission; and that the time limits for bringing claims should continue to be those which apply to general contractual claims."

The Commissions' joint work on insurance is a substantial undertaking – and the report on pre-contractual issues in consumer insurance published on 15th December is the first of a planned series of reports. The current law requires consumers to volunteer information about everything which a prudent insurer would consider relevant. A failure to do so allows the insurer to avoid the insurance contract refusing any claims under the policy.

The SLC summarises the reports as follows :

"The Commissions recommend that the consumer’s duty to volunteer information to the insurer should be abolished. Instead, insurers should be required to ask questions about the things they want to know. Consumers would then have a duty to take reasonable care to answer those questions fully and accurately. If consumers provide information which was not asked for, they must take reasonable care to ensure that it is not misleading.

"Where an insurer has been induced by a misrepresentation to enter into an insurance contract, the insurer’s remedy will depend on the nature of the misrepresentation:

"1.If the misrepresentation was honest and reasonable, the insurer must pay the claim. The consumer is expected to exercise the standard of care of a reasonable consumer, taking into account a range of factors including the type of insurance policy and the clarity of the insurer’s question.

"2.If the misrepresentation was careless, the insurer has a compensatory remedy based upon what the insurer would have done had the consumer taken care to answer the question accurately. If the insurer would have excluded a certain illness, for example, the insurer need not pay claims which would fall within the exclusion but must pay all other claims. If the insurer would have charged more for the policy, it must pay a proportion of the claim.

"3.If the misrepresentation was deliberate or reckless, the insurer may treat the policy as if it never existed and may decline all claims. It would also be entitled to retain the premiums, unless there was a good reason why they should be returned.

"The Commissions’ recommendations reflect the approach already taken by the Financial Ombudsman Service (FOS) and generally accepted good practice within the insurance industry. However, the draft Bill would enshrine this good practice in law. It would make the law simpler and clearer. Insurers would be less likely to turn down claims unfairly and consumers would have greater confidence in the insurance industry."

Double jeopardy again

The Scottish Law Commission Report on Double Jeopardy (part of the criminal law programme taken on by the SLC following the reference from the Scottish government after the World's End murder trial – on which see here) was published in early December (Scot Law Com no 218). The SLC has recommended the statutory restatement (and clarification) of the rule as well as recommending that it should not apply where the original trial has been corrupted, for instance by jury-rigging or intimidation of witnesses, or where the person acquitted has later admitted committing the offence.

As the report was prepared at a time when only four Commissioners were in place there is an unusual division as the Commission reached no decision on whether or not there should be a retrial if there was new evidence. However, the Commission did recommend that if Parliament did decide to introduce the possibility of retrial it should be confined only to the most serious offences – rape or murder (albeit with the possibility that Ministers could seek Parliament's consent to add further offences in the future).

The Commission recommended that any change in the law should only be for the future (taking into account that no consultee cited any case of an acquittal where there was new evidence which would justify a retrial and the concern that retrospective change would take away the present rights of acquitted persons).

The lead commissioner on the project, Patrick Layden QC, said,

"The rule against double jeopardy has protected the citizens of Scotland against repeated prosecutions for hundreds of years. Essentially, it prevents the state from running the criminal prosecution system on a "Heads we win; tails, let's play again until you lose" basis. So we are recommending that it should be kept, and put into legislation.

We have a division of opinion within the Commission on whether there should be a possibility of a retrial on the basis of new evidence. The arguments are difficult. It is important for decisions of the courts to be final. People who have been tried once should be able to get on with their lives without the possibility of further proceedings hanging over them. It would not be right to allow the state, with its large resources, to try, try and try again to get a conviction. And anyone who has been through the trauma of a criminal prosecution, and been found not guilty, should not have to go through that again. On the other hand, if there is genuinely new evidence, it is open to Parliament to take the view that justice demands another trial."

At the time the reference was made I wrote (in a post written by me subsequently adapted for an article in the Edinburgh Law Review, although posted under Professor MacQueen's name on this site) that,

"There is … a risk in carrying out law reform in such time pressured politically sensitive circumstances. … [T]he Commission – in considering legal policy – may not reach a result in accordance with political (and public) expectations."

Where there is political pressure the role of the Commission becomes difficult, and it could be argued a clearer steer on political decisions should be given to the Commission from the government allowing the Commission to work effectively within the political parameters and allow legal policy to be properly developed.

On publication of the report there was criticism from politicians and others, including Morain Scott, the father of Helen Scott, one of the victims in the World's End killings. He said,

"It is of extreme importance that the victims of crime and the Scottish public have complete confidence in the ability of Scotland's criminal justice system to deliver justice. In our opinion today's recommendations by the Scottish Law Commission fall far short of meeting these expectations. We are in complete agreement that it would be wrong to be allowed to persecute people indefinitely but the law has to be fit for purpose, and with the advances in science and technology we find it hard to believe that it is recommended that any proposed changes should not be applied retrospectively."

Soon after the government position was explained in a BBC Scotland interview with Justice Secretary Kenny MacAskill. He said,

"People who commit heinous crimes and for whatever reason closure does not occur, we owe it to the victims, to the families, to the communities to allow action to be taken. The decision about whether a case should be re-prosecuted and double jeopardy should be overturned will ultimately be a matter for law officers. But our view is that the law officers should have the right, and if it is retrospective, then so be it. The law officers will have our full support."

Mr MacAskill's view was welcomed by defence advocate Paul McBride QC who said,

"I'm delighted that the justice minister has decided to overturn the patently illogical recommendation from the Scottish Law Commission and follow the path preferred by all the other political parties as well as the public. If one thinks of rape cases involving children, rape cases involving adults, horrific murder cases, and new evidence of a compelling nature comes to light that wasn't available at the trial that demonstrates beyond any question the person is guilty, is it right as a society to say that persons should go free?"

It is expected legislation will be introduced with cross-party support in 2010.

[this blog post was contributed by Scott Wortley with no input from the general editor]


Unincorporated associations

On 26 November 2009 the Scottish Law Commission published its report on Unincorporated Associations (Scot Law Com no 217).

Under the current law clubs have no separate legal personality, meaning that all members of a club become potentially liable in a number of circumstances.

Former Law Commissioner, Colin Tyre, QC, who was the lead Commissioner on the project, said:

“The law relating to unincorporated associations and clubs is widely regarded as being in an unsatisfactory state. Many people who join clubs or devote time to the management of voluntary associations are unaware of the personal liabilities which they may incur simply by becoming a member or a committee member. For too long the law has brushed under the carpet the difficulties caused by its failure to recognise these associations as separate legal persons. We think the time has come to treat them as legal entities with their own rights, assets and liabilities.”

The Commission therefore proposes that non-profit making unincorporated associations with 2 or more members, and certain provisions in the constitution (namely: the association's name; its purpose; membership criteria; the procedure for the election or appointment of those managing it; the powers and duties of its office-bearers; the rules for distributing its assets if dissolved; and the procedure for amending its constitution) will be accorded separate legal personality.

Lord Hope of Craighead KT and judging in the Supreme Court

On 29th November Buckingham Palace announced the appointment of Lord Hope of Craighead, Deputy president of the Supreme Court of the United Kingdom, to be a Knight of the Most Ancient and Most Noble Order of the Thistle.

The Order of the Thistle is the highest honour in Scotland, rewarding those Scots that have held public office or who have contributed in a particular way to national life – and Scots Law News congratulates Lord Hope on his receipt of this well deserved honour recognising his contribution as Dean of the Faculty of Advocates, Lord President of the Court of Session, Law Lord, and Deputy President of the Supreme Court. Lord Hope said,

"I am extremely honoured to be appointed a Thistle Knight by Her Majesty. I am delighted that my roles within the Scottish legal system have been recognised by this uniquely Scottish distinction."

In a recent interview with the Solicitor's Journal Lord Hope explained how the introduction of the Supreme Court had impacted on the judges in the highest court. The interview is discussed in an excellent new legal blog, the UKSC blog which discusses and summarises developments in the Supreme Court.

Lord Hope notes that having a dedicated court building now gives the justices of the Supreme Court an increased opportunity to discuss cases before judgments are written, and draft judgments are circulated and discussed.

He also notes the flexibility offered by the new court as judgments can be issued in a manner appropriate to the particular case. For example, a judgment can be issued in the traditional manner, or as a single opinion (eg Re B (A Child) [2009] UKSC 5) or a single judgment with the agreement of all justices noted, but with additional comments where appropriate (eg R (A) v B [2009] UKSC 12). However, Lord Hope is keen to stress that the flexibility for the justices of the Supreme Court to give individual judgments avoids the anodyne, anonymous approach where there are single judgments.

On a practical level Lord Hope also notes that – while the House of Lords published judgments in order of seniority – the Supreme Court prints the leading judgment first.

Arbitration (Scotland) Bill passed

The Arbitration (Scotland) Bill was passed by the Scottish parliament on 18th November 2009.

On passage of the Bill the Enterprise Minister Jim Mather said,

"The Bill gives Scotland a modern arbitration regime which captures the best of modern international practice. It reforms and codifies the existing out of date, obscure and incomplete law and will enable people to resolve their disputes more quickly and more effectively than going to court, setting the scene for a renaissance of Scottish arbitration.

"There is increasing demand around the world for high quality arbitration services to resolve cross-border commercial disputes, and the Bill will help to make Scotland an easy place to do business. In order to make Scotland an attractive choice for dispute resolution and bring international business here, we must demonstrate that our domestic arbitration system is efficient and cost effective. The aim of the Bill is to give us a modern, impartial and efficient arbitration regime which will have that effect."

Although passed on 18th November the bill has not yet received royal assent.

The bill is considered in a paper on the Renaissance of Scottish International Arbitration by Steven P Walker, advocate and a comment by Professor Eric Clive.

The Ure Elder Fund for Indigent Widow Ladies

Since the Scottish Parliament started business in 1999 it has passed ten private Acts. The Parliament has a special private bill procedure. As each private bill is introduced to further the private interests of the bill's promoter objections are permissible and it is for Parliament to arbitrate between promoters and objectors.

Most of these private Acts have related to transport developments, including the Airdrie-Bathgate Railway and Linked Improvements Act 2007, Edinburgh Airport Rail Link Act 2007, Edinburgh Tram (Line One) Act 2006, Edinburgh Tram (Line Two) Act 2006, Glasgow Airport Rail Link Act 2007, Stirling – Alloa – Kincardine Railway and Linked Improvements Act 2004, and Waverley Railway (Scotland) Act 2006.  A couple relate to development issues (Robin Rigg Offshore Wind Farm (Navigation and Fishing) (Scotland) Act 2003 and the National Galleries of Scotland Act 2003) and the last relates to the transfer of assets from a statutory charitable trust, the Baird Trust Reorganisation Act 2005.

The Scottish parliament is currently considering the Ure Elder Fund Transfer and Dissolution Bill. This relates to the Ure Elder Fund for Indigent Widow Ladies, which was established in 1906. The fund was established on the death of Isabella Elder – a philanthropist who laid out a public park (Elder Park) for the people of Govan and established a School for Domestic Economy and built and financed the Elder Cottage Hospital and Elder Free Library in the area. Mrs Elder had been an advocate of women's education gifting North Park House  to Queen Margaret College – the first college to provide higher education to women in Scotland.   In 1890 she agreed to finance courses of study at the college's new School of Medicine. The QMC subsequently merged with Glasgow University, and in 1894 its medical school produced Scotland's first women graduates in Medicine.

The fund allowed for an annual grant of £25 to impoverished widows resident in Govan or elsewhere in Glasgow and while this would be worth £2,300 in modern prices the restriction remains in place today and therefore to enable the trustees to carry out the aim of providing assistance and relieving poverty today the trustees are promoting a bill to lift the payment cap and widen eligibility to receive help.

This is the first private bill of the third session of the Scottish Parliament.