Lord Lyon on feudal earls, the derbhfine and baronies

The Lord Lyon, David Sellar, has been busy of late, issuing guidance notes on the use of the derbhfine or "family conventions" in determining clan chiefdoms and on baronial additaments and territorial designations in the grant of arms, as well as rejecting a petition to be allowed to use the designation "feudal earl".

width=180All the material is available on the Lyon Court website, as also a note relating to baronies issued in December 2009.  The "feudal earl" decision is a ruling in law that there is no such title, and is a learned disquisition across a whole range of aspects of the subject.  It is understood that there is to be an appeal to the Court of Session.

Stair on Facebook

Scots Law News has discovered that the Stair Society was preceded onto Facebook by its late eponym, James Dalrymple Viscount Stair, the "Father of Modern Scots Law", who has had his own page since early November 2009.

Stair, speaking through Edinburgh PhD student Karen Grudzien Baston, declares his interests to be law, natural philosophy and travel, and reveals that his birthday is on 29 November.  There is also a number of fine portraits of the great man.  There is no indication of whether he is "taken" or "available", or on his sexual preferences (which should probably be seen as a relief).

At the moment Stair has 5 fans, somewhat fewer than the Stair Society, which now has 52!

Passing off Nessie?

A dispute between two rival Nessie exhibition centres based in Drumnadrochit entered the doors of Inverness Sheriff Court on 29 June 2010 but was resolved by agreement rather than judgment the following day.

The pursuers were the Official Loch Ness Exhibition Centre, a five-star attraction established near the Drumnadrochit Hotel in 1980, while the defenders were the Original Loch Ness Monster Visitor Centre, a three-star centre established since 1987.  The two centres are about 100 yards apart in Drumnadrochit.  The pursuers claimed that the public were confused by similarities in name and other aspects of their branding.

Under the parties’ agreement the pursuers will henceforth trade as the Loch Ness Centre and Exhibition, while the defenders will be the Nessieland Castle Monster Centre.

width=240The publicity surrounding the dispute seemed nicely timed for the start of the school holidays, and also brought to the attention of the public various developments of the centres – including loch cruises – currently under consideration.  The intellectual property rights or, indeed, the views of Nessie herself seem not to have been canvassed.  But then who will speak for monsters?  No sign of her in this photograph from the Loch Ness bank opposite Drumnadrochit looking south-west, where Scots Law News went to look for comments.

Connected lender liability in Parliament House

The First Division of the Court of Session tackled the tricky issue of connected lender liability under section 75 of the Consumer Credit Act 1974 in Durkin v DSG Retail Ltd and HFC Bank Ltd [2010] CSIH 49 and decided that under the section a consumer buyer’s rescission of a contract of sale of goods (a laptop computer) did not have the effect of also rescinding the connected loan contract by means of which the price was paid to the seller.

Mr Durkin's claim against the creditor in delict (made on the basis that his refusal to repay the loan had led to his being put on credit blacklists and being as a result unable to buy a property in Spain until after the credit registers had been put right, when the property was over £100,000 more expensive) was also rejected by the court.

The decision on section 75 is a controversial one, turning essentially on the view that the phrase “like claim” in the section – the consumer who has a claim under the sale contract has a like claim against the connected lender – does not reach rescission (i.e. termination of the contract) but only monetary actions such as damages.  It is understood that Mr Durkin, the consumer in this case, intends to take it to the Supreme Court, taking the view that the Division’s decision is a “travesty of justice” and adding “I have always said the law is an ass”.

While the language of the 1974 Act gives much support to the view of the First Division – e.g., rescission is not so much a "claim" as a "right" (as section 102 of the Act puts it); again, how can a lender be jointly and severally liable to rescission, as section 75 seems to require? – it is not clear that the policy of the Act in section 75 is satisfied.  It is a very odd result if the debtor continues in effect to have to pay for rejected goods not conforming with the requirements of the contract, notwithstanding the legal form of the transaction under which the liability incurred is that of a loan repayment.  The consumer's natural instinct will be to think there can be no ongoing liability to pay; but, as Mr Durkin's experience vividly illustrates, if the law is against that, the consequences of the consumer following instinct can be pretty horrible. 

As your correspondent attempted to point out in an article long ago – see 1984 SLT (News) 65 – section 75 tries to achieve the same result in connected sale and loans as would have followed in the typical hire-purchase transaction.  In hire-purchase, the creditor buys the goods from the supplier, and then hires them to the debtor, who pays instalments until the purchase price is completed and then becomes the owner.  In hire-purchase, if the goods are not conform to contract, the debtor's rejection and rescission would be good against the creditor, from whom payments made would be recovered and to whom payments to be made would no longer be due.  The creditor of course would then have recourse against the supplier, probably on the same grounds of the goods' non-conformity as a term of the contract under which the creditor bought the goods from the supplier.  So there is something in the argument that the policy of the Act is given best effect in connected sale-and-loan contracts by finding that when the buyer-debtor rescinds the sale contract, s/he can do the same with the loan contract.  The creditor should also be able to recover the money it has in fact paid to the supplier, either under the contract it has with the supplier or, if need be, under the law of unjustified enrichment (or restitution, in England).

It should also be noted (as it is at para 43 of the First Division's opinion, but only in summarising counsel's arguments) that if the debtor has made any contractual payment to the supplier, then rescission of the supply contract will involve the monetary claim to repetition of those payments (see Gloag on Contract, pp.59-60; cf McBryde on Contract, paras 20.142-3); and under section 75 that claim can be exercised against the creditor and set off against the liability under the loan.  It might be arguable that in connected sale-and-loan cases the debtor who has rejected the goods also has the right to repetition of the full price even although that price was de facto paid by the creditor; the supplier who has been paid for goods sold surely cannot deny the debtor-buyer repetition of that price on the grounds that the payment was actually made by a third party.  If this is right, then exercising a "like claim" against the creditor will again simply involve extinguishing the loan obligations.

It is to be hoped that this case will go to the Supreme Court and that we will then get at last an authoritative and comprehensive ruling on the meaning of section 75.   Your correspondent is by no means sure that the suggested policy argument can trump the argument from the language of the Act; but it is as clear from the First Division's decision as it was to your correspondent in 1984 that "the 1974 Act has not made all other law on sale of goods and breach of contract irrelevant.  The Act must be considered against the wider legal background." (1984 SLT (News) 65 at 67).  The policy argument is not wholly unsupported by legal ones.

Two final thoughts.  Mr Durkin bought his laptop from PC World in 1998.  It has taken 12 years for his case to get as far as Parliament House, and presumably it will be a wee while yet before he gets into court in London.  No doubt there are many reasons for this, but how many consumers would or could last this long in pursuit of their claims?  The other is the complete lack of customer care displayed by the supplier and the creditor (in particular) in dealing with Mr Durkin's claims at the outset of the problem.  For that reason alone, one hopes the First Division's is not the final word on the subject.


Stushie over Salduz in the Supreme Court

As forecast here at the beginning of the year, the implications for Scots law of the European Court of Human Rights decision in Salduz v Turkey (Application No. 36391/02, 27 November 2008) that the presence of a lawyer at police interviews of criminal suspects is essential to avoid infringement of Article 6 ECHR (fair trial), came before the UK Supreme Court at the end of May 2010; and even before the case (Cadder v HMA) was officially decided (the due date is 20 October), the Crown Office instructed change in police interviewing practices.

Interim guidelines say that suspects being interviewed should be offered access to a solicitor for a private consultation, in person, in advance of the police interview.  If the accused or the solicitor wishes the solicitor to be present during the interview then access should be allowed unless, once again, it is considered that there are compelling reasons why this should not be permitted. Any such reason should be clearly noted and detailed in full.  

The guidelines also make clear that they are not intended to pre-empt the decision of the Supreme Court and are issued with the intention of protecting prosecutions pending the decision of the Supreme Court.  However, it appears pretty clear that the Supreme Court indicated that it was against the Crown’s arguments in the Cadder case, and that the unusually long period before the court’s decision is announced is to be explained by its willingness to give the Crown (and the Scottish Government) time to work out how to adapt the Scottish system to a new world. 

The big question is whether the court’s decision will be prospective only, or will be held to affect all convictions already achieved using the evidence from police interviews conducted without the presence of lawyers.  If the decision has retrospective effect (as one would expect), then there may be questions about emergency legislation to deal with it.  One possibility is that such retrospective legislation would have to be passed in the Westminster Parliament since, unlike the Scottish Parliament, it is not absolutely constrained in this regard by Convention rights.  But another possibility is that generally criminal appeals have to be made within three months of the final finding of guilt; so, if the guidelines work as intended, by the time the Supreme Court issues its decision, most convictions procured using police interview evidence will no longer be appealable. 

There are also issues about the compatibility of the Crown Office guidelines with solicitors’ professional code of conduct, and about legal aid provision.  This is producing no doubt interesting discussions between the Justice Secretary, the Law Society of Scotland and the Scottish Legal Aid Board. 

Assuming that the Supreme Court does rule against the present law and overturn the previous seven-judge decision of the Criminal Appeal Court (MacLean v HM Advocate 2009 HCJAC 97), there may be interesting implications for other parts of Scots criminal law, evidence and procedure, not least the rule requiring corroboration.  One of the defences of the existing law on police interviews is that no conviction could be procured on such evidence alone; something else would be required to corroborate it.  Given the importance of police interviews to the obtaining of many if not most convictions, the police and prosecution authorities may well feel that, if that possibility is lost or significantly reduced after the Supreme Court’s ruling, a different approach to the rules of evidence is going to be required.  England provides the obvious model: no corroboration needed there, but suspects have access to lawyers in all interviews.

Tesco law: where are we now?

Since our last posting on this vexed topic, there has been a further confusing whirl of extraordinary general meetings, referendums, votes and searches for compromise in the solicitors’ profession, but the real action now lies in the debates in the Scottish Parliament.

While the Legal Services (Scotland) Bill has still a wee way to go, Stage 2 of its Parliamentary progress was completed on 29 June 2010.  In its current form, as amended by the Justice Committee on 15 June, the Bill will not now allow majority or complete ownership of a legal practice by non-solicitors; there must be at least 51% ownership and control vested in solicitors or members of other regulated professions.  This moderation of the original proposal is supported by the Law Society of Scotland.

We look forward to the autumn series on this one. 

Lockerbie: SCCRC documentation will not be released

The Herald for 15 June 2010 carried a story that none of the Crown Office, the Foreign Office, the police and Abdelbaset al Megrahi have (as yet) consented to the public release of the documents that led the Scottish Criminal Cases Review Commission to refer the last-named's conviction back to the Appeal Court in 2007.

It also appears from the story that in February The Herald made a freedom of information request for the papers to the Commission, whose refusal to give access was subsequently upheld by the Scottish Information Commissioner.

No legionary’s shield (needed) for Scots law?

Elspeth Reid has kindly drawn our attention to the Dundee Sheriff Court case of Esposito v Barile, a judgement issued on 8 June 2010, in which Sheriff George Way dipped into the characterisation of Scottish legal history as well as the application of the law of unjustified enrichment between former cohabitants.

The case concerned the division of the proceeds of the sale of a cohabiting couple’s jointly owned house in Monifeith.  The parties had taken title in unequal shares reflecting their different contributions to the purchase price.  The pursuer, who had the larger share, argued that the distribution of the proceeds by the parties’ joint solicitors had been based on the latter’s incorrect calculation, with the result that the defender had received too much.  He also claimed that the defender was enriched by a contribution made by the pursuer’s father to discharge in part a standard security over the property originally granted jointly by the parties.  The purpose of the father’s contribution had been to allow his son to become the sole liable party, but this eventually did not work out.  The pursuer claimed half of his father’s contribution; the defender contended that she was only liable to pay an amount proportionate to her share of the title to the property.

In holding for the pursuer on all points, Sheriff Way was led into a discussion of the development of Scots law, as follows (para 14):

[D]espite a persistent juridical myth to the contrary, Scots Law is not based upon Roman Law but rather has borrowed concepts and procedures from Roman juridical sources which, with similar borrowings from other systems have been woven into our native jurisprudence.  … [I]ndeed to explode the shibboleth that Scots Law carried a legionary’s shield to ward off the peculiarities of our larger southern neighbour one need only read Professor Hector MacQueen’s Common Law and Medieval Society in Scotland to see the evidence of the extent to which our forebears were readily inclined to refer to English law and procedures.

This prefaces a discussion in which the learned sheriff finds it un-necessary to determine which of the enrichment condictiones might apply – “We are no longer required to shoehorn the facts into a particular style of Roman sandal before the remedy could be made to fit.”  The distribution of the sale proceeds by the parties’ solicitors had been made in error, and the defender had no legal basis for keeping the benefit this conferred upon her, even although she had done nothing to induce the error.  The remedy was recompense, and the sheriff also rejected a subsidiarity argument that the pursuer had failed first to exhaust its other possible remedies, for example under the Family Law (Scotland) Act 2006 (para 19). 

I do not accept that any of the authorities, to which I was referred, require a potential claimant to embark upon the uncertain waters of actions for breach of contract or duty by solicitors or yet in the almost uncharted depths of estranged cohabitant claims under the family legislation, before he or she can have recourse to equity.

With regard to the payment made by his father, the pursuer had a title to sue on the basis that he was a co-obligant with the defender on the standard security, entitled to relief inter se for payments made (Moss v Penman 1993 SC 300; Christie’s Exx v Armstrong 1996 SC 295).  Here, “[i]n the event that the court had to analyse the pursuer’s alleged right … by reference to the Roman condictiones, then this would have been a classic case of the condictio causa data causa non secuta.  The pursuer made a payment to achieve an objective that did not come to pass” (para 23).

First taking care to avow that he is not unduly swayed by the kindly judicial reference to his own scholarly work (incidentally actually entitled Common Law and Feudal Society in Medieval Scotland), your correspondent thinks that, although there may be caveats about the analysis, the learned sheriff’s decision is fundamentally correct.   The solicitors’ error, whether one in fact or law, was made as the pursuer’s agent, and thus seems to make the over-payment one that was undue, i.e. it was a case of the condictio indebiti.  Perhaps the remedy is therefore repetition rather than recompense.  The right of relief between co-obligants likewise probably does not depend on recompense but is an independent obligation in some but not all ways analogous with recompense (Gloag & Henderson, 11th edn, para 28.12 note 5).  Had the father been the pursuer, however, the case would have been one of a claim for payment of another’s debt, with recompense probably the remedy.  But, standing the question whether recompense was truly relevant here, the approach of the sheriff to the subsidiarity question is a very welcome one (see Niall Whitty’s discussion of this subject at (2006) 10 Edin LR 112).

There is also discussion of personal bar in the case (the pursuer is held not to be barred from his claim) which your correspondent thinks is basically correct as well; but he will leave discussion of that, if required, to the learned co-authors of Reid and Blackie on Personal Bar (unfortunately not cited to Sheriff Way).

Disputes not resolved as Arbitration (Scotland) Act comes into force

The Arbitration (Scotland) Act 2010 came into force on 7 June 2010.  While generally welcomed in the legal media, a modicum of controversy was sparked by a dissenting voice from within Edinburgh law firm Tods Murray.

An article on the Tods website, written by Charles Brien, a senior associate of the firm, suggested that the Act deprived arbitration of its flexibility and would (should?) do more to encourage people to resolve their disputes by means of mediation.  This view was strongly criticised by, inter alia, John Campbell QC, in a letter to Scottish Legal News published on 7 June.  Mr Campbell admitted to having been a Tods Murray apprentice three decades ago, then continued:

Openness of mind and thorough attention to detail were the watchwords of the day, but I fear that Mr Charles Brien has exhibited neither. I beg leave to doubt if he has read the Act. His assertions are vigorous, but regrettably wrong. In the Tods Murray spirit, he should know that thanks to the hard work and diligence of a long list of passionate enthusiasts for the subject, Scotland now has a world-leading Arbitration Code, the envy of both civilian and common-law systems. The law and the (mostly optional) Rules can all be found in one place for the first time ever, anywhere in the world.

Mr Brien says "Arbitration provided a framework in which both parties could choose the rules, but this changes with the new Act. The Act brings in a 'one solution fits all' approach…." No it doesn't, Mr Brien. It does precisely the opposite: if one reads s.9, for example, he will see that the great majority of the Rules in the Act are optional; contrary to his erroneous assertion, the Act is highly flexible and could accommodate the entire spectrum of disputes, from one between (for example) BP and the US Government, to one between a householder and her plumber, the latter using the Chartered Institute of Arbitrators’ Scottish Short Form Arbitration Rules, developed to provide a simplified arbitration procedure appropriate to consumers and small businesses. They are written in simple, non-legal English and even have footnotes to assist any reader.

The Scottish Act of 2010 defines confidentiality and the right to the privacy of the process; it fosters and enhances party-autonomy; it limits the role of the Court to a small class of possible appeals; it enjoins speed, economy, confidentiality and accuracy on all participants, and it knocks the well-loved English Act of 1996 into a corner in at least four other key respects. It allows parties, furthermore, to adopt whatever rules or style of arbitration they want. … The law gives parties a default appointment process (nobody says the arbitrators have to be Scots); a supportive (but not interfering) court system, decent and good value lawyers; an obligation to "get on with it"; and the nicest country and some of the best people in the world. The Act has been hailed by overseas colleagues in this field as a triumph and a legislative milestone.

But Mr Brien came back strongly in Scottish Legal News on 11 June, saying –

There may be flexibility, but you have to draft that into your arbitration agreement or agree it with your opponent at the one time when you are most likely not to be on speaking terms. Arbitration clauses were historically very short but now you are confronted with the default rules (all 48 of them) into which you have to draft levels of detail in a manner which you simply did not do previously.

The disputants challenged each other to a debate (rather than an indubitably inappropriate duel) to take place in Tods Murray premises, with Mr Brien offering mediation as the way to determine the motion to be debated; but your correspondent’s departure on holiday shortly after Mr Brien’s response means that he is not quite sure what happened next.  Further intelligence welcomed. 

For what seems to have been a pretty positive assessment of the Act by practitioners at a conference in the Edinburgh Law School on 23 June, see here

Senators training week: lessons from Canada

The Senators of the College of Justice took a week out of court business at the beginning of June 2010 to undergo their first training week under the auspices of the Judicial Studies Committee.

Your correspondent had the rather terrifying experience of lecturing the assembled Senators in the main hall of the Mackenzie Building (in the Old Assembly Close just off Edinburgh’s High Street), and then supervising the break-out groups within which they discussed a set of case-studies also provided by your correspondent (topic privacy).  The judges were of course excellent and attentive students, and mostly their laughter occurred when the speaker intended it.

A feature of the week was the participation of a group of judges from the Canadian equivalent of the Judicial Studies Committee, the National Judicial Institute, a world leader in judicial training.  By all accounts the session on evidence led by the Canadians was the highlight of the programme.  A concordat between the JSC and the NJI was signed at the week’s closing dinner in the Great Hall of Edinburgh Castle, with speeches by Justice Secretary Kenny MacAskill, Lord President Hamilton (as now head of the Scottish court system the delivery of judicial training is his responsibility), and (by video and the best of the three) the impressive Canadian Chief Justice Beverley McLachlin.

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