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Vol 52 No 10 OCTOBER 07
THE MEMBER MAGAZINE FOR THE LAW SOCIETY OF SCOTLAND
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Agenda
for change
Goodwill at the
ABS conference
Engaging with
new lawyers
Unveiling the
Society’s strategy
Greener grass
Are we leaking
younger lawyers?
Testtube
court
On the case with the
Glasgow reparation pilot
ALSO INSIDE: FAMILY LAW / SMALL FIRM IT / FRAUD / COMMERCIAL LEASES / IN-HOUSE
For online recruitment, daily news updates and searchable archive, visit www. journalonline.co.uk
02 Digby Brown ad
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03 Contents07-10-1a
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Contents Vol 52 No 10 October 2007
www.journalonline.co.uk
Contact
Journal
staff and
contributors
42 Coping with change
Regular items
5 Editor
Hard work after the conference
7 President
The big projects in hand
8 Letters
IP disputes; interpreters in prison
9 Opinion
Patrick Wheatley: Crown appeals
22 Professional news: Society
(More in the box below)
25 Update
26 Notifications
Entrants to the profession
27 People
Firms and lawyers on the move
27 Current consultations
30 Professional practice
30 Integrated marketing
32 IT: a small firm’s story
34 Risk: fraud part 2
34 Professional briefing
34
36
37
38
39
40
41
Criminal court
Licensing
Charities
Insolvency
Environment
Websites
Book review
42 In-house
42 Tips for coping with change
44 Akzo and legal privilege
46 Property lawyer
46 Why argue over leases?
48 ARTL gathers pace
50 Sidelines
Abby, Alistair, Six and more
PUBLISHERS
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of the Law Society of Scotland are
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Society of Scotland, 2007
ISSN: 0458-8711
53 Classified
58 Recruitment
35 pages of legal appointments
Member of PPA Scotland
30 Low budget, big returns
20 More proposals in gestation
34 Opportunities to appeal
Features
10 Cleared for takeoff
Sheriffs and solicitors working in the
Glasgow pilot reparation court give
their views on the benefits of the
procedure, and its potential
12 Heart to heart talking
The Journal reports on the key
presentations at the Society’s ABS
conference, and the debate generated
14 Blueprint for engagement
New Lawyers’ Coordinator Collette
Total Net Circulation: 10,519
(issue specific May 07)
Av. Net Circulation: 10,400 (Jul 06-Jun 07)
Subscription Information:
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Paterson introduces the Society’s
strategy for attracting new talent into
the legal profession
16 Disaffected youth?
Sue Lennox attempts to find the
truth behind the belief that numbers
of younger lawyers are giving up
20 Preparing for birth
Kenneth Norrie’s quarterly column
focuses on three important sets of
proposals from recent months
Society news>
Turn to pages 22-25 for legal aid,
standards, PC fees, Brussels trainees,
complaints, IHT, SYLA and more.
Website: www.lawscot.org.uk
October 07 theJournal / 3
04 Groundsure ad
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05 Editorial07-10-1a
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Editorial
The success of the conference on alternative
business structures still leaves some difficult
questions in mapping the future
Now for the hard bit
Forward together?
The big conference on alternative
business structures has come and gone.
Everyone – the Society, the consumer
interests and the Justice Secretary –
agreed it was a Good Thing and looked
forward to working together. So are we
all agreed on the way forward?
Naturally it isn’t quite a simple as
that. As our report describes, what to
most of the lawyers present were
matters fundamental to the whole
issue, such as how to deal with
potential conflicts of interest, were for
the non-lawyers simply points of detail
to be addressed at a later stage.
The opposing starting points were
evident also when some of the
solicitors asked the consumer
representatives whether they had an
evidence base to support their preferred
model – and the consumerists in turn
asked what evidence there was to
support the belief that everyone is
satisfied with things as they are.
There is no longer room for doubt
that change is coming, but there is a
long road ahead and a lot of work to
be done. The Society’s consultation
paper, promised for the end of
October, is at an advanced stage. From
the draft before the last Council
meeting, it is not something that can
just be skimmed through: it will
need time to digest it and consider
a response.
One point that came through from
talking to solicitors from various parts
of Scotland was the feeling that many
practitioners in their respective areas
had not thought sufficiently about the
options for change to have a view on
Editor
Peter Nicholson
them. Perhaps it is worth repeating the
warning of Professor Stewart Hamilton,
the accountant lay observer on the
Society’s Council, that solicitors should
not repeat the mistakes of his
profession and go “sleepwalking into a
minefield”. Be aware that if you want a
say in the future of your profession,
now is the time to get up to speed.
How to do things without rules
An experiment in Glasgow Sheriff
Court that involves conducting
selected reparation actions via
telephone conference call, until proof
is heard on any matters that cannot be
resolved otherwise, may not at first
glance make many waves as a possible
model for civil litigation generally,
even in relation to the ordinary cause.
But the procedure, flexible and nonrule driven as it is, is borrowed from
the commercial court, not an obvious
parallel, and if it can work for two
such different types of action, why not
for others?
Hence we were interested, when
invited to speak to the sheriffs and
some of the regular users of the
reparation pilot court, to test opinions
on whether they could see the
procedure as having a wider
application – at a time, of course,
when the whole future of civil
litigation is under review courtesy of
Lord Gill. The answer, in broad terms,
is a somewhat qualified yes. Perhaps
not surprisingly, solicitors who act
mainly in personal injury cases
commented mainly on its further
potential in relation to those actions,
with some divergence of view. The
sheriffs acknowledged that the case
management system works well
enough with more complex matters in
the commercial court, since it is aimed
at isolating the real areas of dispute in
order to reduce the time required at
proof and increasing the likelihood
of settlement – all things in the
client’s interest.
As Sheriff Principal Taylor, who
instigated the scheme, is a member of
the Gill review, we can expect the pilot
scheme to be fully considered for its
potential. As we have said before, no
one answer is likely to be the right one
for the full range of civil actions. But
innovations deserve to be properly
tried, tested and discussed, and we
hope that if the opportunity arises for
other such initiatives, practitioners,
judges and court staff alike will be open
in this time of change to fully exploring
how they may benefit their practice and
their clients.
Professor Stewart Hamilton warned
that solicitors should not repeat the
mistakes of his profession and go
“sleepwalking into a minefield”
October 07 theJournal / 5
06 CLT ad
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07 President07-10-1a
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President
The new President’s first page brings an update on the important
projects currently in hand to take the profession forward
Your voice will count
President
Richard
Henderson
As you will probably know, I come
to the position of President – and
therefore write this column – sooner
than you or I might have expected.
I want both to thank John MacKinnon
for his help in enabling me to make
the transition and to wish him well
as he refocuses on the demands of
practice.
I take up the job in a period of
considerable change for the
profession. However, regardless of the
drivers for change, the Society’s
ambition remains constant: we want a
profession that is confident in its
ability, and its place in, and
contribution to, civic Scotland. The
impression I have from conversations
around the country is that there is real
willingness to embrace change. And
my discussions with international
contacts suggest we are doing the right
thing in trying to get ahead of the
game where the need for change is
pressing.
Agenda for change
The Society has certainly embraced
responsibility for driving forward a
positive agenda. Reform of the legal
services market and the debate over
alternative business structures may
have arisen south of the border – first
with the Clementi review and, more
recently, the Legal Services Bill – but
the Society contributed extensively to
the Research Working Group on the
Legal Services Market in Scotland,
and has been keen to take forward
that work. It now has the opportunity
to do so.
If attendance was any measure of
success, “The Public Interest –
Delivering Scottish Legal Services”
conference at the end of last month
was outstanding. It also suggests the
profession wants to be involved in this
debate and in building the future. As I
write this piece, a discussion paper is
being prepared, taking into account
views and feedback from the
conference and setting out some of the
options for the change. I hope that the
paper will be issued for consultation at
the end of October and trust it will
continue to generate debate.
Standards redefined
The Society is also in the middle of a
process to address standards of service
and conduct. We think that the
profession will benefit immeasurably
from a clearer and more
understandable statement of such
standards. Again such an exercise has
been under discussion for some time,
though it was given added impetus
with the decision to set up the Scottish
Legal Complaints Commission. We
will soon launch a wide-ranging
consultation exercise on this too –
details are contained on p 23 of this
month’s Journal.
One innovative suggestion is that
standards could differentiate between
what is expected of individual
practitioners and law firms as business
entities. The Society is keen to ensure
that we come up with a statement that
meets the expectations of the
profession and of clients and other
relevant groups. To that end, we have
formed a reference group of nonlawyers, including consumer interests,
to test the draft statement as it is being
prepared. I would encourage as many
of you as possible to take part in the
consultation. It is important that both
solicitors and those with whom they
come into contact should know what
to expect from each other.
Underpinning core values
When we started the work on
standards, we realised quickly that we
would have to look at the
profession’s core values. We are
fortunate that the Society has already
been examining the education and
training regime for some time, with
an in-depth consultation exercise
conducted last year. Core values and
principles lie at the heart of that
exercise. The results have been
assessed and we are now preparing a
policy document for publication in
early 2008. Training the next
generation of lawyers to meet the
needs of tomorrow’s legal services
market and of the country at large is
amongst our most important duties.
All of these projects are part of the
drive by the Society to redefine its role
and meet its responsibilities. The
Strategy Project that Ruthven Gemmell
and John MacKinnon put in place has
a vital role in reinvigorating the
profession and the Society. I am
confident that its work can set the
pattern for development for the next
decade.
Bread and butter issue
So those are some of the challenges we
are addressing: ABSs, standards,
education, governance and strategic
aims. But they pale into insignificance
when seen against the research on civil
legal aid published by the Society last
month. The prospect of large numbers
of practitioners withdrawing from
legal aid work is a cause of real
concern, not least because the most
vulnerable in society may be denied
adequate access to justice as a result.
The views of legal aid practitioners
must be heeded by all concerned,
including the Society. We have to focus
on resolving such problems, which
will define the future as much as ABSs
and other high-profile issues.
October 07 theJournal / 7
08 Letters07-10-1a
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3:16 pm
Page 8
Letters
Send your
letters to:
Email: journal
@connect
communications.
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or by post to:
The Editor,
The Journal,
Studio 2001,
Mile End,
Paisley PA1 1JS
f: 0141 561 0400
Protecting IP rights out of court
I fully agree with Dr Moreland’s analysis
there is also the risk of differing
in his letter published in the August
decisions. Multi-jurisdictional litigation
Journal. For a country that prides itself
is a challenge for even the largest
on the creativity of its scientists and
organisations, but most companies in
writers, a specialist IP court with rights
Scotland are quite small and are
of audience for those that can
dependent on a fairly narrow
best represent their clients’
portfolio of rights, and so
interests is long overdue.
for them the resources
However, no matter how
required may be beyond
In a letter in the
efficient its procedures or
their means, while the risk
August Journal
talented its adjudicators,
of losing may be
nd
Dr David Morela
it can only go so far in
potentially devastating. In
ist
ial
ec
sp
argued for a
meeting the needs of
response to these
al
sheriff court to de
Scotland’s innovators in
concerns,
many companies
s
ht
with IP rig
protecting their rights.
turned to arbitration, which
Intellectual property is based
offered a single hearing with
primarily on national rights, but
simplified procedures rather than
disputes frequently stretch across those
having to go to each country separately.
national boundaries, leaving the rights
However arbitration has been losing its
owner or the company that opposes
popularity in recent years, due in part
those rights to fight expensive and time
to costs and concerns about the lack of
consuming litigation in multiple
appeal from an unsatisfactory decision.
jurisdictions, with all the associated
Another option might be mediation.
problems of translation and unfamiliar
Mediation is much quicker and less
and often contrary procedures. Where
expensive than arbitration, and shares
there are multiple actions, of course,
the advantage of confidentiality.
fyi
However it also has unique benefits: as
the parties must agree to any outcome,
there is no risk of an unacceptable
decision; resolution can be found
beyond the usual court remedies; and
as each party can share their thoughts
and plans in confidence with the
mediator, the opportunities for a
creative solution are increased. There
will naturally be some concerns about
reaching a settlement with a potential
competitor, but the cost of quality
competition law advice pales into
insignificance when compared with the
costs of litigation. Mediation is not
suitable for every case, but does offer
substantive advantages in party-to-party
disputes. If we are serious about
meeting the needs of creative
businesses working in Scotland, we
should be doing more to encourage
this type of business-orientated dispute
resolution.
Patricia Barclay, Director, Bonaccord
Ecosse Ltd, Edinburgh
Serco rules and
prison visits
May we draw to your
members’ attention the
requirement we have that
when dealing with foreign
nationals, all interpreters must
be registered with an
appropriate body and must
have been tasked by that body
to attend for the purposes of
translation. In addition to this,
all interpreters are required to
provide appropriate
photographic identification
when attending visits at this
establishment.
We have recently had an
incident when a solicitor
attended a legal visit with an
interpreter who had attempted
to provide what we believe
may have been false
identification, and on being
challenged by staff, the solicitor
became difficult and began to
insist that the interpreter be
permitted entry to the visit.
We have written separately
to the lawyer in question, but
would be grateful if all
solicitors would note the
position.
Michael Guy, Assistant Director,
Security & Operations, Serco Home
Affairs, HM Prison Kilmarnock
Did you know?>
The European Court of Justice
has again denied in-house
lawyers’ claims to professional
privilege: p 44
8 / theJournal October 07
09 Opinion07-10-1a
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3:12 pm
Page 9
Opinion
Extending the Crown’s rights of retrial on the basis
of the outcome of the “World’s End” case could be
the thin end of a very large wedge
Does justice
need fixing?
So where do we go from here?
Following on the collapse of the
“World’s End” murder trial we have
the Lord Advocate telling the Scottish
Parliament that if the Crown had had
a right of appeal against a judge’s
decision to hold that there was no
case to answer, then she would have
exercised that right in the “World’s
End” case. And we have the old
chestnut of the so called double
jeopardy. Can someone who has been
acquitted of a crime ever be tried again
for that same crime?
Should the Crown have a right of
appeal against a judge’s decision to
uphold a “no case to answer”
submission? An accused person can
appeal a decision that has gone
against him – but that will only be
after conviction. The right to make a
“no case to answer” submission is a
fairly new one – from 1980. Clearly
Parliament (the United Kingdom one
at that time) did not consider it
appropriate for the Crown to have a
right of appeal.
Is there really a problem that needs
addressed? I do not know how many
successful “no case to answer”
submissions are made each year, and I
do not know how many of those
would be appealed by the Crown, if
they had a right to do so. I can only go
on my own personal experience and
hearsay (and probably apocryphal
hearsay at that) from professional
colleagues. My own feeling is that
there are more unsuccessful
submissions that should succeed than
successful ones that should not. There
is a real sense that judges are far
happier leaving the ultimate decision
to the jury – after all, that is what they
are there for. Some of us are old
Patrick
Wheatley
Patrick Wheatley QC
is a solicitor advocate
in the criminal
courts
enough to remember so called strong
judges of the 60s and 70s who would
not allow cases to go to a jury if they
did not think that the evidence was of
sufficient character, quality and
strength, even though there might
have been a strictly legal sufficiency.
That does not happen nowadays.
What really bothers me is the
kneejerk reaction. Someone who
should have been convicted has got
off; therefore, the law has to be
changed. Let’s get back to basics. We
have a great criminal legal system. It is
the envy of many other jurisdictions.
Our starting point, and we must never
forget it, is the presumption of
innocence. It is for the prosecution,
the Crown, to rebut that presumption.
If they fail to do so, that is an end of
the matter. How many chances have
we to allow them? Since time
immemorial our system of justice has
said only one. Long before “human
rights” were even thought of, our
system of justice protected the rights
of the individual. The Crown has one
chance to bring an accused person to
trial, and if they do not succeed, that is
that. Everyone, especially the accused
person, knows where they stand.
There is finality. Even accepting that
the “World’s End” trial judge got it
wrong (which I do not, as I do not
have enough information to come to
that conclusion), do we have a
problem, namely a system of justice
that systematically lets guilty people
get off? I think not. Therefore I see no
need to change our law or our practice
just because some people think that
one judge made a wrong decision.
I have already made a comment
about the Crown having one, and
only one opportunity to bring an
accused to trial, and generally I agree
with that as a basic principle.
However, I accept that there are
advances in modern science and
technology, particularly in the area of
DNA, which bring a new dimension.
Convicted persons can bring appeals
based on new evidence. If we have
what is called equality of arms, should
the Crown not be allowed to bring a
second prosecution when new
evidence appears? That could be the
thin end of the wedge. Once you
allow it in, where does it stop? On the
other hand, if it was your loved one
who had been murdered, and an
accused had been acquitted, and then
new evidence became available
implicating the same accused, what
would your view be? As I have said,
however, to go down that line could
be the thin end of a very large wedge.
Before we start changing our law, let
us be satisfied that there is a serious
problem that keeps recurring and that
needs addressing.
If it ain’t broke, don’t fix it!
What really bothers me is the kneejerk reaction. Someone who should
have been convicted has got off;
therefore the law has to be changed
October 07 theJournal / 9
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Page 10
Feature Reparation court
The pilot reparation procedure in Glasgow Sheriff Court
is winning the confidence of its users, sheriffs and solicitors
alike. Peter Nicholson reports on experience to date and
whether the model might work in other contexts
A case
for trial?
“M
y initial
misgivings
have been
completely
blown away. I think this is the way
to do business. I think it serves
everybody, I really do.”
The words are those of Sheriff
Kenneth Mitchell, who with his
brother sheriff Craig Scott was
deputed last year by his sheriff
principal, James Taylor, to pilot a
case management-based procedure
for selected reparation actions
raised in Glasgow Sheriff Court.
Usage of the procedure, which is
entirely voluntary, has grown as
solicitors have become more aware
of how it works, and with about 90
live actions currently in progress
over and above those already
concluded, both sheriffs are now
convinced of its benefits.
“Some solicitors have been
under the misapprehension that
all we are about is fast track”, says
Sheriff Scott. “It’s not just a fast
track procedure. The important
thing to be clear about is that it’s a
case management procedure and
there will be some cases which
justifiably need to take some time,
but our belief is that in the vast
majority of cases, because of the
way we case manage them, the
prospects for focusing on the
ability to settle the case are
significantly enhanced.”
A judicial precedent
The case management conference
(“CMC”) procedure is not unique
to the reparation court but is
closely modelled on the rules
10 / theJournal October 07
already made for the Glasgow
commercial court – of which
Sheriff Scott also has experience. “I
run this court very much along the
same lines as I did the commercial
court. We don’t as yet have rules
for the PI court, so it’s more a case
of how does the practice and
procedure of the commercial
court translate, and in my view it
translates very well indeed.”
The notion of a court without
rules may sound like a
contradiction in terms, but Sheriff
Mitchell emphasises the close
control that is kept over the
progress of actions, principally
through being able to deal at
every stage with the solicitor
personally in charge of the case,
by means of the telephone CMC.
If the solicitors on each side agree
that a case should run under the
pilot procedure, the options
hearing is discharged and the
CMC cycle begins.
While the progress of an action
revolves around the CMC,
flexibility remains the watchword,
and innovation is positively
encouraged. Sheriff Mitchell
again: “When we do the first CMC
we make clear to solicitors the way
we operate, that there are certain
rules we can’t breach, but we ask if
there’s anything they want to raise
with us – we give them the
opportunity to say, well, I wonder
if we could do that, and if we can
we’ll do it.”
Open exchanges
By what measure does he
conclude that the procedure leads
to a more effective determination
of actions? “I think that because
the case management conference
encourages both solicitors to
exchange views and discuss things
between themselves prior to the
case management, they are much
more prepared to exchange
information than they were
before.”
That and because they then
apply their minds properly to
issues of liability and available
heads of damages. In other words
the CMC will help both to
identify and refine the areas of
dispute.
On a normal cycle CMCs will
be fixed at anything from two to
six week intervals, depending on
the reason for continuation –
which, the sheriffs believe,
concentrates the minds of parties
and insurers as well as their
advisers, if they know that the
sheriff familiar with the case will
be asking pointed questions about
progress at a fixed and early date.
But equally the sheriffs stress that
if, say, an essential medical report
is not expected to be available for
a few months, they are likely to
accept that no further action
should be taken meantime, or
that a proof should be assigned
sufficiently far in advance to
enable the report to be procured.
Alternative methods
“Usually when responsible
practitioners ask you to make no
order, and tell you the reasons for
it, you’re not in any doubt that it’s
the right thing to do”, Sheriff
Mitchell agrees. “We would tend
not to sist, because that is contrary
to what we hope we are about
which is to move it along as fast as
it can go, without making people
go faster than they properly should
in the interests of justice and the
interests of the client.” To restart a
case, all it takes is an email from
the solicitor to request a further
CMC – email being the normal,
indeed essential, method of
communication between hearings.
Even debates are largely
avoided through the CMC
procedure. Sheriff Mitchell relates
the case of a woman who sued a
plastic surgeon, being dissatisfied
with his efforts. A difficult issue
arose because her contract was
with a company whose terms
were that any dispute would be
determined according to English
law and in the English courts. “We
discussed it in the case
management conference and I
said, before next time will we all
apply our minds to the law. I
wrote them a note setting forth
the way I thought it was, for
further discussion, and in the light
of that they settled it.”
Equally, it may be readily
apparent that a particular issue
will require proof, such as the
road traffic case where parties
agree quantum but each
maintains it was the other’s fault.
In one such case, raised six weeks
earlier, Sheriff Mitchell had just
fixed a proof date three months
ahead – which would have been
sooner but for one solicitor
having an operation scheduled.
10-11 Lead - Reparation court07-10-1a
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1:00 pm
Page 11
PHOTO: KEVIN MEECHAN
Viewpoint
Reparation lawyers
look to the future
M
Test pilots:
Sheriff Mitchell (left)
and Sheriff Scott
Due economy
Only a proportion of the
reparation actions raised in
Glasgow go through the
procedure. Actions craving sums
under £10,000 are not eligible
for the pilot. The guideline is
from the sheriff principal,
attempting to give his sheriffs
enough to do without
overloading them; but the
sheriffs also believe that below
that value “economic
considerations have force –
parties take views on things
which they might not
otherwise”, and the system
might not be given a fair test. It
does mean, however, that pilot
cases may conclude sooner than
lower value actions caught in
the ordinary cause rules, which
most practitioners appear to
accept are in need of overhaul.
If under ordinary procedure
the rules are stricter but in
practice cases take longer, in the
pilot court it is the procedure
that is elastic whereas most
cases are concluded without
delay. Pressure on courtroom
availability is such that proofs
once set are not readily
discharged, and the sheriffs use
a combination of pre-proof
hearings and backup cases (their
preferences differ as to which
they rely on more) to ensure
that court time is not wasted.
A proper model?
With the pilot procedure
following that of the
commercial court, could it be
the model for litigation more
generally? Both sheriffs believe
it has potential, while being
cautious as to its possible
scope. Sheriff Mitchell
considers that it is not suitable
where there is a party litigant.
Sheriff Scott accepts that even
the more complex cases
might benefit:
“Certainly, in the
commercial court, a number of
the disputes the court was
called upon to resolve involved
things like significant building
contract disputes as well as
complex factual situations. The
benefit, once again, of the case
management procedure as
applied to those cases was not
necessarily to resolve the
whole dispute, but to put
everybody in a position of at
least ‘seeing the wood for the
trees’, clarifying what the real
issues were and then moving
on to proof, having tried to
ring fence the various factual
disputes.”
He adds: “The commercial
court was never about the
application of rocket science, it
was about the application of
common sense, and this pilot
scheme is just the same.”
With Sheriff Principal Taylor
sitting as a member of Lord
Gill’s review of the civil courts,
there is at least someone on the
committee with close
knowledge of the case
management system who can
provide input to the future
shape of civil litigation.
ost regular users of the pilot
procedure are strongly
supportive.
“I and my colleagues have pretty
much unqualified enthusiasm for the
personal injury pilot”, says Paul Wade
of Simpson & Marwick, a response
echoed by others. The proactive case
management by experienced sheriffs;
the telephone CMCs which ensure
the presence of the solicitor dealing
with the case; the flexibility in
deferring CMCs when there is some
inevitable delay; the early proof dates
and the relative certainty that diets
proceed on the date appointed, are
all advantages: “generally a very user
friendly system”.
Peter Crooks of Bonnar & Co,
Airdrie, agrees that the sheriffs have
their eye on the ball more than if a
case is just one on a lengthy roll.
“It’s not that the sheriff settles
cases. He doesn’t. As ever it is the
agents who settle cases, but the
procedure means that the agents
have to address the issues prior to
the case conference, and be prepared
to answer the sheriff’s questions.” For
Bonnar, the procedure flushes out
“the usual hiding places available to
defenders via the pleadings system”,
though he thinks the sheriffs
sometimes allow more continuations
than necessary.
To Fiona McKeracher of Brechin
Tindal Oatts, the same sheriff seeing
a case to its conclusion is a main
advantage, giving more consistency,
less duplication, and greater
openness leading to an emphasis on
reaching or exploring agreement.
Gilbert Anderson of The Anderson
Partnership, current Dean of the Royal
Faculty of Procurators in Glasgow,
maintains there are advantages from
a defender’s perspective. “As a
solicitor who acts for a variety of
insurers I can say without fear of
contradiction that insurers are very
keen to speed up dispute resolution
procedures.”
For Anderson, the system works
best when good pleadings in the
Scottish tradition are combined with
good case management. “Unlike the
Court of Session, you still have full
written pleadings. I can think of a
number of Chapter 43 cases where it
has not been easy to identify the real
basis of the pursuer’s case.” Paul
Wade on the other hand maintains
that elaborate pleadings in the sheriff
court are “no longer tenable when
they have been abolished in virtually
all cases in the Court of Session”.
Both however would support the
adoption of the Court of Session pretrial meeting procedure (Wade would
make it discretionary). Anderson
comments: “The hybrid procedure
could then be rolled out for lower
value cases which I suspect account
for the vast majority in Glasgow.”
All agree that the procedure has
the potential for wider use, within
limits. Family actions might have to
be treated differently as clients are
more intimately involved in hearings.
Peter Crooks also suggests that much
depends on the personality and
experience of the sheriffs. “It works
fine in Glasgow, where you have the
expertise available. I personally doubt
it could be rolled out on a wider
basis. Case management is very
much a Rolls Royce system and I
don’t believe there are the resources
elsewhere.”
He adds: “We tend to use it for
modest value cases. For bigger claims
there is not much doubt that clients
do better in the Court of Session.”
Gilbert Anderson believes that under
the current court structure the latter
court is the more appropriate for
“very large or complex cases” –
catastrophic injuries or multi-defender
disease cases, for example. Fiona
McKeracher sees no reason why the
pilot procedure cannot cope with
most complex personal injury actions,
although certain cases are still likely
to be more suited to Court of Session
procedure: “The pilot scheme offers
flexibility and the sheriff will consider
what further procedures might be
appropriate in these types of cases,
taking into account the usual rules of
fairness.”
Pointing to the savings to clients
by eliminating some of the travelling
and court waiting time, she sums up:
“It’s a more modern approach,
making proper use of technology and
should suit most types of personal
injury actions.”
October 07 theJournal / 11
12-13 Conference07-10-1a
3/10/07
3:32 pm
Page 12
Feature ABS Conference
One message was reinforced at the Law Society of
Scotland’s conference on the future delivery of Scottish
legal services – that a new regime is coming. The Journal
was there to capture some of the essence of the debate
and look for clues as to what might emerge
The tide for cha
Flavour of
the day:
from the
panel
“We need to be careful
about adopting solutions
from elsewhere. Can we
learn from Northern Ireland
as well as England?”
Valerie Stacey QC,
Vice Dean, Faculty of
Advocates
“The structure we propose
is controlled by Scottish
solicitors, and regulated by
the Law Society of Scotland
as the governing body.
Only those approved
would be admitted as
partners”
Douglas Connell,
Joint Senior Partner,
Turcan Connell
“Doing nothing just gives
the competition more time
to get organised”
Christine McLintock,
Risk Management
Partner, McGrigors
“If you are currently
delivering, you don’t have
to worry, but others are
being prevented from
doing so”
Martyn Evans, Director,
Scottish Consumer
Council
“Where is the evidence
that the current system is
working to the satisfaction
of everybody?”
Julia Clark,
Principal Public Affairs
Officer, Which?
12 / theJournal October 07
“W
e won’t preside
over a
diminution in
the quality or
integrity of the Scottish legal
profession. But we can’t stand still.”
These words from Kenny MacAskill,
the Cabinet Secretary for Justice, in his
keynote address effectively set the tone
for the Society’s conference “The Public
Interest – Delivering Scottish Legal
Services”. A near capacity audience in
the new lecture theatre at the National
Galleries – almost a who’s who of the
Scottish profession, including the
managing partners of most of the
leading firms – was left in no doubt by
the platform speakers that the
landscape is set to change, even if the
shape of that change remains unclear.
Kenny MacAskill:
confidence in
profession’s
integrity
from an individual with a grievance
against the Society, he wanted to have
Confidence in the profession
fewer regulatory bodies rather than
Mr MacAskill himself, without adding
more and did not see the need for an
significantly to previous public
additional overseer.
comments, said enough to encourage
He warned his audience however
his audience to believe that the
that they did not have the luxury of
government will listen to
endless time to decide on the
practitioners’ concerns as it
way forward, and on issues
plans to deliver on its
such as legal aid fees that
commitment to reform
the government would go
ce
Vi
EW
LS
,
Paul Marsh
designed for Scottish
as far as possible to
ed us
President, advis
needs. Professing his
maintain services but
ed
as
cre
to insist that in
confidence in the
would not always be able
is
ce
oi
ch
er
consum
integrity and ethos of the
to go as far as solicitors
informed choice
profession he himself
would like.
practised for 20 years, he
Mr MacAskill’s presentation
stressed that regulation needed to
was flanked by those of Jonathan
serve the interests of both the
Goldsmith and Sean Williams – see
profession and the public; that markets
panels – who each put an able case
should not be opened up unless access
from the opposite ends of the core
to justice and quality of services can be
values-consumer interest spectrum.
maintained; that the best Scottish firms
Earlier, opening the conference, the
should be able to compete
Society’s President Richard Henderson
internationally, but local firms must be
said that its aims were very simply that
able to prosper; and that the retention
the whole issue was amongst the most
of an independent referral bar is
important to face the profession for
consistent with wider rights of
some time and it was right that we were
audience. And in answer to a question
all as well informed as we could be.
fyi
The Society had made no decisions,
but when it did it would be in
knowledge of the facts, and those who
contributed could also do so as fully
informed as possible.
Unscripted remarks
In proper conference style, it was the
exchanges with members of the
audience that drew some of the most
interesting and sometimes revealing
comments. Challenged to explain how
the conflict rules could be reconciled
with banks and the like offering legal
services, Julia Clark of Which? chose to
class that as a detail that could be
worked out once the principles were
established, to an audible ripple of
reaction round the floor. However at
another point she challenged her
audience in turn by asking where was
the evidence that the present system
was working to everyone’s satisfaction.
Paul Marsh, Vice President of the
Law Society of England & Wales,
reminded us that they had been
through the same debate two or three
years ago. While his advice was not to
underestimate the strength and quality
12-13 Conference07-10-1a
3/10/07
3:32 pm
Page 13
More on the ABS debate>
Journal, September, 10: “ABS – Actual Benefit Soon?”
Journal, August, 12: “Checkout the debate”
nge
of ordinary solicitors and their ability
to cope with change, he said that one
question that should have been asked
more stringently with the English
reforms was how to ensure that
increased consumer choice was an
informed choice – without
information, choice was irrelevant.
Valerie Stacey QC, Vice Dean of Faculty,
was tempted to conclude from that that
there should be no change in the rules
on direct access to counsel, having
previously invited us to provide ideas
on how to move the bar forward.
The consumer representatives sought
to play down the public interestconsumer interest issue. Martyn Evans
questioned how fundamental the
distinction really was: “Neither side has
the moral high ground”, he
commented, “but the distinction is less
than Jonathan Goldsmith suggested.”
Julia Clark equally took the standpoint
that we are all consumers, all members
of the public. Both insisted that existing
consumer protections must not be
diminished – though solicitors from
the floor and panel alike appear to
believe that the Guarantee Fund is
unsustainable.
With all these views, and many
more, on offer, how far has the
conference advanced the debate? It has
undoubtedly generated much
goodwill, and with the principal
participants mainly expressing their
desire to work together for reform,
there is a tide there ready to be taken at
the flood. Nevertheless it is clear that
the difficult issues lie just below the
surface, and the real test for the Society
will come in the preparation of its
consultation paper, expected at the end
of October, and more particularly in
the formulation of its policy in the light
of responses, by around next February.
There will be much in the months
ahead for the Journal to cover.
From the floor:
Janet Hood
Jonathan Goldsmith: core values and public interest
What might be described as the traditional
professional standpoint was presented by Jonathan
Goldsmith, Secretary General of the CCBE, the
Council of European Bars and Law Societies. While
recognising the combination of global economic
forces and EU internal market and competition policy
driving the removal of restrictive professional rules,
he underlined the difference between public interest
and consumer interest and the supremacy of the
former. “Am I first a citizen or a consumer?”, we
should ask ourselves, he urged.
Mr Goldsmith highlighted how the EU competition
directorate co-ordinates the competition authorities
from the individual member states to try and get
others to adopt initiatives from one state, such as the
England & Wales Legal Services Bill.
At the same time the European
Court in Wouters had recognised
the right of the Dutch bar to
continue to regulate the
profession as respects the core
values, and the “issue for
today” was how to sustain the core values within a
purely economic argument.
Even the Legal Services Bill, he noted, had had the
requirement to protect and promote the public
interest written back into it, albeit belatedly, and he
questioned whether the structure of the bill was
adequate to support it. The CCBE’s position remains
that there are overriding non-economic reasons that
speak clearly against the introduction of ABS; and as
the Legal Services Board is to be entrusted with
defining the approval requirements for non-lawyer
owners of legal practices, it is too early to say whether
the public interest will be protected.
Mr Goldsmith left us with two further questions.
The first, he said, was a very difficult one, the answer
to which was not yet properly defined even
in the Legal Services Bill: what is the
borderline between the free market and the
core professional values? Secondly, can the
core professional values be protected by a
licensing regime as envisaged? Again, he
was unable to say until he saw the rules.
Sean Williams: no obstacles insurmountable
Aligning himself closely with Kenny MacAskill’s
points was Sean Williams, the OFT’s Executive
Director for Markets and Projects. The OFT, he said,
would be an active participant in the debate as a
constructive agent for change, not by prescribing
solutions. The discussion was exactly about the
borderline between the integrity of the profession and
the interests of the consumer. The OFT had a very
longstanding interest in these issues across all the
professions, to see that they were not unduly restricted
whether by the behaviour of service providers, by
professional rules, by regulatory bodies or by
government.
The OFT proposed this approach to striking the
balance: rules restricting competition, whether
they emanated from the profession or from
government bodies, could only be supported if
they were essential to maintain the public
interest and proportionate to that purpose. The
professional rules discussed in Wouters had
been considered justified, but the court
had said that the only restrictions
permitted were those that could be considered clearly
necessary to protect the public interest. The OFT’s
view was that the public interest had to be clearly
defined and the rules properly assessed.
No obstacles to removing the present restrictions
were insurmountable, Mr Williams asserted – they
just needed time and thought. Safeguards would be
necessary, but safeguards had been designed for other
sectors without a blanket ban on entry. The “fitness to
own” test in the English bill, for example, included
criteria of honesty, integrity, reputation, capability and
financial soundness.
As respects the subjects of the Which? supercomplaint, he suggested that permitting the different
branches of the profession, or lawyers and nonlawyers, to operate in partnership, would result in
shared costs, thereby reducing fees and improving
access to legal services – and might be the only
way to sustain practices in small towns. The
restriction on external ownership prevented
firms from accessing capital to take
advantage of new opportunities.
October 07 theJournal / 13
14-15 New lawyers07-10-1a
3/10/07
12:23 pm
Page 14
Feature New lawyers strategy
The Society launches its three-year plan for supporting
the next generation of Scottish solicitors this month.
Collette Paterson, the Society’s New Lawyers’
Coordinator, explains
New
lawyers
forall
C
lose your eyes and think
back to law school, or your
days sitting the Society’s
professional exams.
Despite dodging a few lectures,
bungling one or two exams, and
partaking in the odd caffeine-fuelled
“all nighter”, you made it through and
you qualified into the profession. At
which point the Law Society of
Scotland was unveiled to you, to advise
you of your CPD requirements, right?
Well not now, because times are
changing.
This month marks the end of a oneyear gestation period, and the Society
has delivered to the Scottish legal
profession a fully researched, three-year
strategy to engage “new lawyers” – a
term that includes those thinking
about studying law, LLB students, those
sitting the Society’s exams, Diploma
students, trainee solicitors, and
solicitors with less than five years’
experience in the profession (and
everyone in between). But why, in
2007, is the Society publicly stating that
it must do more to support prospective
solicitors by launching the “New
Lawyers’ Engagement Strategy”?
New platform
The Scottish legal profession is evolving
hugely, and although some of that
The strategy – the vision
Above: a new breed of
newly qualified solicitor
will start to emerge
14 / theJournal October 07
In three years’ time:
1. The Law Society of Scotland will
demonstrate best practice in generating and
maintaining engagement with new and
future members. The Society will be a
constant presence during a person’s route to
qualification.
2. A new breed of newly qualified Scottish
solicitor will start to emerge. This group will
have made an informed decision to enter
the profession, having been assisted by the
legal profession and the Society during their
personal route to qualification.
These solicitors will be willing to take
control of the profession to assist in
meeting the needs of clients, the public,
and their fellow members. Mechanisms will
be in place for proper representation of
new lawyers’ interests throughout the
Society.
3. The profession will have a positive attitude
towards working with the next generation of
Scottish solicitors for the ongoing benefit of
the profession, with individuals regularly
assisting the Society in this work.
4. The reputation of the legal profession will be
improved because of a genuine investment
in its future.
change has come in response to outside
events, increasingly the Society and
profession are grasping opportunities to
be proactive in addressing different
aspects of what we do.
When it comes to relationships
being nurtured throughout the
profession, those with new entrants
can be described as having been a bit
hit and miss. A straw poll of your
current cohort of trainees might reveal
dissatisfaction with the sources of
guidance and information during their
earlier years of education, and an acute
lack of awareness of current issues
facing their profession. In some
corners, there is frustration that the
voice of “new lawyers” in the
profession can often be drowned out
by more powerful forces at play.
What we certainly do know about
graduates, many of whom incur
significant levels of debt in their
pursuit of the profession, is that their
career expectations are changing. For
example, knowing as we do that by
2011 the average solicitor in Scotland
will be female, under 30 and educated
in a state school, one ever-lingering
query is what impact this will have on
the profession in the not-very-distantat-all future? The engagement strategy
will provide new lawyers with a
platform to share their views and
engage with their profession and
14-15 New lawyers07-10-1a
3/10/07
12:23 pm
Page 15
More on new lawyer issues (also on www.journalonline.co.uk)>
Journal, June 2007, 26: “Vision 20:20”: possible outcomes for education and training
Journal, January 2007, 28: “Grow your own assistant”: ideas from smaller firms
The strategy: the new lawyers’ view
The SYLA is wholly supportive of the Society’s
work to engage with new lawyers and we are
pleased to work in collaboration with the
Society’s New Lawyers’ Coordinator in ensuring
the successful delivery of the joint projects
outlined in the strategy. Collette Paterson is
always welcome at all of our events and we see
her role as a very important and positive one.
Our decision to work more closely with the
Society was made in July this year, after taking
the view that the profession’s future members
would undoubtedly benefit from the resources of
both the SYLA and the Society, working together.
We accepted the proposals as outlined and
have committed to working jointly with the
prospective employers from the start
of their careers.
The projects
To achieve our vision, we have set five
objectives:
to raise the profile of the Society and
the Scottish Young Lawyers Association
(SYLA);
to provide quality advice on the
route to qualification and careers;
to achieve different kinds of
participation, ranging from
communication to involvement to
representation;
to assist in ensuring continuing
competence and ongoing development
by providing tailored learning
opportunities to qualified new lawyers;
to collaborate in this area of work
with the entire profession and other
key stakeholders.
So far, during the strategy
development phase, the Society has
devised diaries for every first year law
student in association with SYLA;
forged a partnership with the Scotsman;
and collaborated on the first ever
edition of Target Jobs Law Scotland,
which aims to provide a central list of
available traineeships – something
Scotland’s law students have cried out
for over the years.
Some examples of projects we will
be developing in year 1
What we
certainly do
know about
graduates,
many of
whom incur
significant
levels of
debt in their
pursuit of the
profession,
is that
their career
expectations
are changing
(until September 2008) are:
improving guidance to trainee
solicitors at the commencement of the
training contract and beyond;
tailored CPD for solicitors with less
than five years’ PQE;
developing the “new lawyers”
section of the Society’s website and
creating a new SYLA website so that the
sites become the main portals for new
lawyers;
distributing an e-newsletter to new
lawyers;
running national careers events or
focus groups;
recording careers podcasts;
coordinating blogs written by
trainee solicitors.
Role for the profession
The Society will publish an annual
review of the strategy, and the
successes we report on will largely
depend on you, the profession, buying
into the New Lawyers’ Engagement
Strategy and working with the Society
in the delivery of projects.
One already successful
collaboration is with the Scottish
Young Lawyers Association (SYLA).
Over the years SYLA has brought many
issues facing those whom they call
“young lawyers” to the forefront of the
legal profession. The Society and SYLA
have spent time this year negotiating
how best to work together to benefit
this group, while ensuring that each
organisation retains a distinctive
identity, and SYLA in particular
remains independent to act as it sees fit
on behalf of its members. The Society
is confident that great things can be
achieved for students, trainee solicitors
and newly qualified solicitors as a
result of our combined forces.
Of course collaboration cannot stop
there. The Society is keen for individual
members of the profession, and
organisations, to assist in
Society for the next year as part of the strategy.
An assessment of the year’s activities and
successes will be made thereafter.
The SYLA is committed to engaging the
profession and working with the Society, while
continuing to provide a distinct and independent
voice for those entering the profession.
This is an excellent opportunity for those new
to the profession to really get involved and
help shape their future. The SYLA is delighted
to be working with the Society to ensure it
happens.
Maryam Labaki is President of the
Scottish Young Lawyers Association
implementing the strategy projects.
For you, this could mean attending a
careers event at a school or university;
encouraging your trainees and NQs to
get involved in associations such as
SYLA, TANQ (Trainee And Newly
Qualified society), or EYBA (European
Young Bar Association); providing the
Society with venues to run some of our
focus groups or careers events; or
sponsoring some of our work.
As we progress the rollout of the
strategy, the Society will be looking to
promote champions of our work to the
remainder of the profession. Some
organisations have already played a key
role in the development phase, for
which we are very grateful. Consider
how your organisation could help roll
out the projects, and register your
interest on the Society’s website.
Talent wars
It is the pace of change which has
created the opportunity to address the
services we provide. The New Lawyers’
Engagement Strategy is just one
example of the Society redefining its
role for a modern profession. We are
fighting the “war for talent” not only
across jurisdictions, but also across
professions. If we are to win and retain
the talent the profession needs to thrive,
we must create goodwill with new
lawyers, starting from their formative
years of education and training.
Ambitious plans have been
conceived by the Society. As a
profession we must open our eyes to
the importance of supporting
tomorrow’s solicitors – today.
Visit www.lawscot.org.uk/training/
newlawyers to read the full strategy document,
and register your interest in taking part in the
various projects.
The Scottish Young Lawyers Association’s
website is www.syla.co.uk .
October 07 theJournal / 15
16-18 Young lawyers leaving07-10-1a
3/10/07
12:26 pm
Page 16
Feature New lawyers leaving
Is the legal profession losing too many good lawyers at an
early stage in their careers? Sue Lennox attempted to find
the truth behind the opinion sometimes voiced that a lot of
recently qualified solicitors are leaving the law
Leaving the
profession
T
here is a view in some
“these figures are disaggregated
quarters that many
for gender, but not by age or
solicitors are leaving the
post-qualifying experience. That
profession after only a
means we can’t tell which
few years qualified. Certainly,
solicitors are those who are
among my contemporaries, I am
retiring (which will be the
aware of several who, after three
majority) and which will be
to five years of working in
other factors (people
private practice, have
leaving mid-career, or
veered away from
people who have
law to do
been removed from
no
The Society has
something either
the register)”.
t
accurate data, bu
completely or
Stevenson advised
rs
be
believes the num
substantially
that the Society is
given
leaving are low
different. But are
“currently half way
e
the growth in th
they just individuals
through introducing
n
professio
looking for something
a new information
different, or are there
technology platform which
factors at work which contribute
should be able to provide data
to the exodus?
on this area, as we are conscious
First stop was an enquiry with
that we need to have data such
the Law Society of Scotland to
as this”.
see what figures are available on
Stevenson comments however
the scale of the outflow. Neil
that his feeling is that “we are
Stevenson, the Society’s Head of
talking low numbers. The rapid
Diversity, advised that whilst
growth in the profession in
they do keep figures for
recent years could not have been
solicitors coming off the roll,
sustained by the admissions
fyi
16 / theJournal October 07
rates, if significant numbers of
fairly newly qualified solicitors
were leaving”.
At the same time, whilst the idea
that people are leaving the
profession in droves seems to be
something of an urban legal myth,
there are definitely some who are
choosing to chuck away their
statutes and hang up their
dictaphones. I spoke to several
people I know who have taken this
route, to try to gauge what
motivated them to move on to
pastures non-legal and to explore
what other options they had
taken. (All names have been
changed to protect the innocent –
or those who may want to work in
the legal profession ever again!)
Work: how much is too much?
From my sample survey, a main
theme which emerged was
pressure of work. Almost
everyone cited this as a factor in
their decision to quit the legal
profession. As Hannah, who
used to work as a litigation
solicitor in a large city firm
explains: “I was dealing with a
very high volume of cases, which
meant there was very little time
for each file. I was always rushing
around and soon the files had
morphed from being peoples’
lives and businesses – they were
simply files that were making my
life a misery… In all seriousness,
it got to a point where I just
began to hate doing the work
because I felt I was not getting
scope to do my job properly due
to too much work.”
After completing a postgraduate
degree in marketing, Hannah now
works as a marketing assistant for
a large accountancy firm. She cites
it as “the best career decision I
have made so far. I find that whilst
I am still working as hard, I am
much more focused on one task
in hand – namely to promote my
company’s business. I feel I can get
my teeth into things a lot more
and I know what I am talking
16-18 Young lawyers leaving07-10-1a
about, as opposed to running
around playing ‘hot potato’ with
my files and giving what I felt was
a poor service to clients”.
Stuart, who used to work in
commercial property and has
now joined the (non-legal)
family business, has a similar
take on things. “The main thing
which got me down was that I
was just slaving away and there
was no time for any office banter.
Everyone around me was under
the same pressure – people
would come in on a Monday and
there would be no chat as to
what anyone had done at the
weekend: it would be a case of
switch the PC on and start
3/10/07
12:26 pm
Page 17
dictating. I did enjoy chatting to
clients on the phone, but when
you were working towards
deadlines all the time, there was
not much chance to build
relations, as you needed to get
the work done.”
Obviously, busy offices with
stressed employees are not
unique to the legal profession.
What may be exceptional is the
level of training which legal firms
invest in their staff, making it
problematic when experienced
solicitors leave. Stuart indicates
that a simple recognition of the
stress levels in the office would
have gone a long way: “If my boss
at the time had made the effort to
“If my boss at the time had made
the effort to thank people for
their hard work, it would have
made a huge difference”
thank people for their hard work,
it would have made a huge
difference. All it takes is a thank
you and the suggestion to go for
lunch or drinks now and again in
a nod to the fact that people have
been working hard, for people to
feel more valued. At the end of
the day, everyone likes praise and
the feeling that their work is not
going unnoticed. It’s not rocket
science.”
Stuart has taken the lesson into
his current role, where he now
manages a team of over 20. “I
really do make an effort to try to
thank people and make them feel
that I appreciate their efforts. We
recently went on an away day to a
hotel for some activities like clay
pigeon shooting and golf, and I
think it had a big effect on team
morale. Seeing it done the other
way has made me much more
conscious of the importance of
managing people well.”
A connected issue which
emerged was that people were
looking to the future, anticipating
that there would be problems
ahead when it came to achieving
a work/life balance. Many of the
people interviewed seemed
almost to have made a preemptive strike by opting out of
the legal profession, before the
difficulties which they were
noting their more senior
colleagues struggle with became a
reality for them.
Chasing the money
A very common complaint from
those who had chosen a different
direction was the thorny issue of
fees. Sheila – who has not left the
law entirely as she now works for
a public sector body – identified
the “feeing side of things” as one
of the main aspects she wanted to
get away from, as a family law
solicitor with a medium sized
firm. “In terms of the actual
work, I did enjoy it. There was
satisfaction in getting a good
result for your client and helping
October 07 theJournal / 17
16-18 Young lawyers leaving07-10-1a
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12:26 pm
Page 18
Feature New lawyers leaving
them through a hard time in
their lives. However, our firm
would bill clients regularly and I
found it very difficult having to
deal with people on an almost
monthly basis – having to justify
my fee, having to haggle over it
all and then having to chase
people who did not pay. I didn’t
sign up for law to become a one
man band credit control
department. Also, I found that it
really soured working
relationships with clients having
these types of discussions.”
Sheila now much prefers
working in the public sector.
“Perhaps I am too soft for having
to argue with people on a regular
basis, but I just prefer doing my
work and not having to justify
whether I spent two units on
such and such a call as opposed
to one unit.”
Many I spoke to nominated
the need to time record as a real
drawback to working in private
practice. As Hannah summed
up, “You are so busy trying to get
the job done properly and then
you have the added burden of
having to scrupulously record
every single conversation, and
then what you did next on the
file and so on. When you tell
people how time recording
actually works, they cannot
believe you have to basically
justify all these six minute slots
of your working life!” Hannah
adds: “The annoying thing
about it was that the
conversation you forgot to
record would be the one that
you really needed to have
recorded as the client would
have complained.”
Of course, with the need to be
transparent and accountable to
clients, time recording is an
essential part of a firm’s practice
and there were no suggestions
from those I spoke to that it was
avoidable – it was simply a
major gripe. Linking into the
issue of pressure, many also
highlighted the need to meet fee
targets as a factor in their
decisions not to pursue their
legal careers.
Out of all those I spoke to,
Alistair has made the largest
career leap, by quitting his job as
a construction specialist to
become a ski instructor in
France. As he put it: “Everything
has become so competitive. Ten
years ago, you never used to have
things like legal awards, for
example. Firms see that they can
make huge profits and with that
in mind, you are really under
pressure to make those
profits. It feels like the
pressure is heaped on
solicitors to deliver and
not just in terms of
getting good results for
clients but in making
sure that you meet
your target. You have
meetings with your
department heads, you
get emails reminding you
what level of fees the
department still has to
meet by such and such a
date, and if you are not
performing as well as
you should be, then
you have a case to
answer. It’s not
enough that you are
doing your 40 hours a
week, working hard – if
you have not made
enough money that
month, that’s not good
enough.”
Alistair feels he has
made the right choice
and that the legal
profession generally did not suit
him as an individual. “I think for
me it was a case of square peg,
round hole. I did give law a go but
I see now that I was never meant
to be sitting in an office all day – I
much prefer working outdoors
and I am glad I changed direction
when I did, as I could have
plugged away for another five
years and nothing would have
changed. I am glad that I worked
for the years I did as a solicitor as I
am sure it will stand me in good
stead. Next year, my wife and I
want to start up our own chalet
Many also highlighted the need
to meet fee targets as a factor in
their decisions not to pursue
their legal careers
18 / theJournal October 07
business and I am sure my legal
experience will be of some use –
and if it isn’t then at least I have
good contacts!”
The lure of riches
I was quite surprised by the fact
that some I spoke to said that the
reason they chose to leave the
law was to make more money.
The public perception, and
indeed the reality to a
point, is that law is a safe
bet and that generally
solicitors can expect a
good standard of living.
Maybe it’s the Alan
Sugar/Dragon’s Den
effect, but a few of
those interviewed
professed the
desire to go into
business for
themselves. SarahJane, who used to
work as a corporate
lawyer in
Edinburgh, has just
left the profession
and now intends to
set up her own
women’s clothes
shop – following in
the footsteps of her
father, who owned a
clothes shop.
She explained: “For
me, the ideal is working
for yourself. I was always
frustrated by having to
answer to the higher
power and found filling
in the HR forms pretty
tedious – it felt like you had to
fill in a form to be allowed to do
anything. I feel I am more suited
to working for myself, and
although I know it’s not going to
be an easy ride, from a purely
mercenary point of view, if I am
working hard, I want the profit
to go to me, not to the partners I
work for. Of course, if you work
hard, partnership is an option
and you will be your own boss,
but it will be along with 20 or 30
other people. I did not have the
patience to wait for 15 years
before I could start making my
own decisions. With the ability
to sell online as well, it feels like
everything is possible and I don’t
want to miss out.”
Ironically, Sarah-Jane feels that
if she had not specialised in
corporate law, she might never
have had the courage to branch
out on her own. “Every day, I
would act for clients that had
made a lot of money often in the
most unlikely of circumstances,
with products that on paper did
not seem to be viable. I was
seeing for myself that there was
money out there to be made and
I want to try it for myself. Of
course, it may go horribly wrong
but my philosophy is that it is
better to regret the things you do
than the things you don’t do.”
Seeing the world
Another “sign of the times”
answer for leaving the profession
was that people wanted to travel.
A few of those to whom I spoke
mentioned the feeling of being
quite restricted by the profession
generally. Joanne, who previously
worked in private client and now
works in client relations with an
investment management
company, remembers: “I was
seeing my friends who had
different degrees working in
amazing locations. One friend
was an accountant in the
Cayman Islands; another was
working for a global company in
Kuala Lumpur, getting to travel to
Thailand at the weekends. I knew
I wanted to travel and I could not
see that happening with my old
job. My current job is total
change of direction – now I get to
travel once a month and regularly
visit Singapore and Shanghai. I
find it incredibly interesting and
varied and whilst the travelling
can be tiring, the exposure and
challenge of interacting with
those abroad makes it
worthwhile.”
Of course, the possibilities for
solicitors to work in other
jurisdictions have grown
considerably – although some
practice areas will transfer more
easily than others.
Issues to address
Some individuals will
inevitably leave the profession
for their own reasons, but to
the extent that aspects of legal
practice today tend to impact
on solicitors’ job satisfaction,
there appear to be some issues
that legal firms should be
addressing in order to reduce
the risk of losing expensively
trained and otherwise
dedicated fee-earners.
Sue Lennox is the pen name
of a practising solicitor
19 Placed ads
3/10/07
10:02
Page 19
October 07 theJournal / 19
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Feature Family law
Further important legislative developments in family law have
been foreshadowed by three different sets of proposals
published during the summer, as Kenneth Norrie reports
Three
proposals
F
amily law in the United
Kingdom remains dynamic
and, it seems, ever-changing.
The great modernising statutes
of the 1980s and 1990s are already
overshadowed by developments like
the Civil Partnership Act 2004, the
Gender Recognition Act 2004 and the
Family Law (Scotland) Act 2006. The
pace of change shows no sign of
slowing, and three new proposals of
far-reaching import made this summer
are worth paying some attention to,
even before their enactment into law.
The Human Tissue and Embryos Bill
In May, the UK Department of Health
published for consultation a draft
Human Tissue and Embryos Bill,
which is designed substantially to
amend and update the 1990 Human
Fertilisation and Embryology Act. Two
proposals deserve particular notice.
First, the existing s 13(5) of the 1990
Act is to be scrapped. This requires the
providers of infertility treatment to take
account of the welfare of any child who
may be born as a result of the
treatment, “including the need of that
child for a father”. It is difficult to see
what practical effect this odd provision
ever had, for the Act did not include
any rule to the effect that treatment
cannot be provided to single women
(or female couples). Yet the provision
had a clear symbolic message – that the
law preferred children to be born to
heterosexual couples. Now, few doubt
that it is indeed good for any child to
have a father-figure in his or her life,
but it is likely that equally few people
today believe that the absence of such a
father-figure is so contrary to a child’s
welfare that the law should strive to
20 / theJournal October 07
prevent the child’s very birth. The
removal of s 13(5) is to be welcomed.
The second proposal of note
concerns s 28(2) and (3). This is the
provision that confers paternity, when
a child is born after infertility treatment
to a heterosexual couple, on the male
member of the couple when he is not
genetically the father. When the Civil
Partnership Act 2004 was being
debated, there was a hope that this
provision would be extended to allow
same-sex couples (in practice, female
couples) to gain equivalent advantage
and that, in Scotland, the presumption
of paternity in s 5 of the Law Reform
(Parent and Child) Scotland Act 1986
would be amended to create an
equivalent presumption when a child
is born within a civil partnership.
That latter aim always was rather
misconceived. The 1986 Act creates a
rebuttable presumption not of
parenthood but of fatherhood: such a
presumption would virtually
automatically be rebutted by the very
femaleness of those in whose favour it
was hoped it would act. However in
2004 the government undertook to reexamine the issue, and it has now done
so. The 1990 Act, it should be noted, is
a reserved matter.
What is now proposed is that the
1990 Act be amended and that when a
20-21 Family Law07-10-1a
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Page 21
More on related family law issues (also www.journalonline.co.uk)>
Journal, July 2007, 18: Norrie, “High road, low road” (property claims by cohabitants)
Journal, October 2006, 24: Norrie, “Lesbian families, parenthood and contact”
woman becomes pregnant as a result of
infertility treatment provided by a
licensed clinic, her female partner
should be recognised as the child’s
“second parent”, on the same terms as
such a woman’s male partner would be
recognised as the child’s father. A
consequential amendment to the 1986
Act (not mentioned in the draft bill)
would be required in Scotland.
It is of course no longer
inconceivable that a child may have
two parents of the same gender. This
has been possible in England since
same-sex couple adoption became
possible a few days after the Civil
Partnership Act 2004 came into force,
and it will be possible in Scotland on
the bringing into force of the Adoption
and Children (Scotland) Act 2007.
Parenthood, it should never be
forgotten, is a legal and social
construct, more than a matter of fact.
Cohabitants and financial provision
The Family Law (Scotland) Act 2006
provides for Scotland a set of rules
allowing for financial readjustment at
the end of a cohabitation, either on
separation or death. The English Law
Commission (Law Com no 307) has
now made recommendations for
England and Wales. These are very
different from the scheme applying in
Scotland, but Scottish solicitors may
well be called upon to advise clients in
cross-border situations and so will
need to become familiar with the
English rules, whatever they
eventually are.
Under the 2006 Act, only those who
satisfy the definition of “cohabitant”
can access the new remedies and, I
understand, some of the early disputes
that have arisen have been on this
point. The English recommendation is
to be far more precise about which
cohabitants are eligible. Eligibility may
come in one of two forms: having a
child together, or satisfying a
“minimum duration requirement”.
Such a requirement is not uncommon
in countries that recognise
cohabitation rights, but it was resisted
in Scotland, and in my view rightly so.
A minimum duration requires both a
start and an end, and cohabitations are
seldom clear cut at either end: in other
words the scope for dispute about
eligibility is doubled by such a rule.
The 2006 Act is silent on the effect of
any agreement between the parties. The
English proposals suggest that there be
written into the legislation an “optout”, so that couples can disapply the
statute and make their own financial
arrangements. This has superficial
attractions – the desire to respect the
autonomy of couples who wish to
determine for themselves the legal
consequences of their personal
relationships. But the proposal has at
least one serious drawback. It is based
on the assumption that two people
have a single desire. They might not.
Doubtless the opt-out will work only
when both sign an agreement, but that
is entirely innocuous only where we are
convinced of the equal bargaining
power of both parties. Whether the
legislation will permit the courts to
strike down opt-out agreements, and
on what basis they might do so, are
matters that remain to be seen.
The English Law Commission
suggests creating much more distance
between the principles for assessing
claims applicable on divorce and on
separation than exists in the Scottish
Act. For separating cohabitants, they
suggest that the claimant must show
that he or she made “qualifying
contributions” to the relationship. This
may not, at the end of the day, be
substantially different from the Scottish
approach to cohabitation, but it is a
significant departure from the much
looser, fairness-based approach to the
issue on divorce in England.
The 2006 Act gives no guidance to
Scottish courts as to how to value
claims on death. Claims on death of
one of a cohabiting couple have been
available in England since the
Inheritance (Provision for Family and
Dependants) Act 1975, and the
jurisprudence built up may give some
limited guidance to Scottish courts.
There already exists a two year
qualifying period of cohabitation, and
the only recommendation of substance
contained in the Law Commission’s
report relating to mortis causa claims is
to recognise the existence of children as
an alternative qualification.
Intestate succession
The Scottish Law Commission has
been as busy as its English sister. It has
recently produced a discussion paper
on reform of the law of intestate
succession (Scot Law Com DP 136).
This area of succession law, typically
perceived as a matter of the law of
property and its transmission, is, I have
always thought, better seen as an aspect
of family law. It is certainly family law
developments, particularly the
introduction of civil partnership and
the creation of cohabitation rights on
death, that have led to the Succession
(Scotland) Act 1964 becoming ever
more out of touch with the realities of
family life. So the current proposals,
recognising families in their modern
form, are greatly to be welcomed.
I intend to comment on these
important proposals in rather more
detail, but in another place. However, it
is as well to note here that there is no
suggestion of moving away from the
discretionary court-based award to
cohabitants that was introduced in the
2006 Act. But important questions on
the issue are raised by the SLC,
including in particular whether
legislation should give rather more
guidance to the courts than the 2006
Act does, as to how to assess claims
once competently made. One
suggestion is to follow the English
recommendations mentioned above,
whereby it is based on “qualifying
contributions”. Another important
recommendation is that the claim by a
surviving cohabitant should be
extended to the testate as well as
intestate estate of the deceased. This
would be a significant extension of the
claim created by the 2006 Act.
Watch this space
All of the above proposals are likely to
generate heated debate and may well
be substantially varied before being
enacted. This column is unlikely to run
out of issues to comment on for some
years to come.
Kenneth McK Norrie is a Professor of
Law in the University of Strathclyde
Such a requirement is not uncommon
in countries that recognise cohabitation rights, but it was resisted
in Scotland, and in my view rightly
October 07 theJournal / 21
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Professional news Society
Society to
look out for
late PC
renewals
The Society's Special General Meeting
on 28 September agreed the practising
certificate fee for 2007-08, which will
be £665.The subscription for nonpractising members will be £140 and
the statutory retention fee will be £70.
In accordance with the statutory
provisions, the subscription payable
by newly admitted solicitors in respect
of the first three years in which they
are in practice will be half the annual
subscription.
The annual contribution to the
Scottish Solicitors' Guarantee Fund is
£600 per principal.
The charge for an incidental
financial business licence is £65 per
firm and £55 per licensed person.
The renewal forms for practising
certificates were sent out by the
Society's records office in the first
week of this month and require to be
completed, returned and processed
by the end of next month. Please
note that the Society's Council has
agreed that with effect from the
renewal for 2007-08, where a firm
has not renewed timeously its
practising certificates in October/
November the matter will be referred
to the Professional
Conduct
Committee for
consideration of
potential
professional
misconduct
under s 23(2)
of the Solicitors
(Scotland)
Act 1980.
News
in brief
IALS fellowships
The Institute of
Advanced Legal
Studies invites
applications for
visiting fellowships,
tenable from
1 October 200831 August 2009 or
any period of at least
three months between
those dates.
Fellowships are
designed for persons
established in their
own field who are
undertaking work in
fields covered by or
adjacent to IALS
research programmes
or interests. They are
open to academic
lawyers, practising
lawyers or judges with
scholarly projects to
pursue, but not to
support postgraduate
students’ research.
For further
information contact
Peter Niven, Institute
of Advanced Legal
Studies, 17 Russell
Square, London WC1B
5DR (e: peter.niven@
sas.ac.uk). The closing
date is 31 January
2008.
Firms set to
quit legal aid
Nine out of 10 law firms offering to
take on civil legal aid cases will drop
the service in the next four years, a
new Society survey has found.
Poor rates of pay and the
bureaucracy involved are cited by
solicitors as the main reasons for
the impending exit. Four-fifths of
firms said that financial reasons
would force their hand.
Out of more than 100 firms who
responded, only 3% said they had
increased their earnings from civil
legal aid since the reforms which
brought in the block fee structure
were introduced in 2003. Around
70% said their income had fallen.
Over the next year alone, 38%
are likely to give up civil legal aid
work, and 92% of respondents
said they intended to stop within
four years.
The research states: “While it may
be overstating matters to say that
the current system is in crisis, this
report would indicate that without
change it will be extremely difficult
to ensure acceptable levels of access
to justice in Scotland in the future.”
Oliver Adair, convener of the
Society's Legal Aid Committee, said:
“There has been anecdotal evidence
that previous reforms to the civil
legal aid system were not working.
We carried out this research to
gather more concrete evidence.
“It is clear from the research
that there is a serious funding
problem which is causing access
to justice issues – this needs
addressed urgently. Solicitors are
having to make some very difficult
decisions as to whether they can
continue to provide legal aid
services, and it is not a decision
which comes easily to those who
have gone into this branch of the
profession to help some of
society’s most vulnerable people.”
OISC and solicitors’ files
Following recent discussions with the
Office of the Immigration Services
Commissioner, the Society has
accepted that the Commissioner’s
statutory powers allow her to dip
sample the Society’s files in relation
to immigration complaints not
originating from the OISC.
Solicitoirs should note that the
Society must also take reasonable
steps to obtain solicitors’ case files on
the Commissioner’s behalf when
requested to do so in relation to an
immigration complaint.
SLAB consults on summary criminal work
The Scottish Legal Aid Board and
the Scottish Government have
published a consultation paper on
reforms to summary criminal legal
assistance.
The proposals, which underpin
the summary justice reforms in the
Criminal Proceedings etc (Reform)
(Scotland) Act 2007, aim to ensure
that solicitors are appropriately
and fairly paid in summary criminal
22 / theJournal October 07
cases. The reforms will increase
substantially the levels of payment
at early stages of a case (the £70
ABWOR block fee would rise to
£200 for district court and £300
for sheriff court cases), but will
improve efficiency overall by
encouraging early resolution and
avoiding unnecessary work.
The aim is to introduce the
changes by spring 2008. The
deadline for written responses is
24 December 2007.
SLAB, the government and the
COPFS are holding free seminars in
October and November to inform
solicitors about the proposals.
Locations and dates are:
Ayr, Thursday 11 October;
Dundee, Tuesday 16 October;
Glasgow, Thursday 25 October;
Edinburgh, Tuesday 30 October;
Stirling/Falkirk,
Thursday 1
November; Aberdeen,
Wednesday 7 November; Central
Scotland, Thursday 8 November;
Dumfries, Tuesday 13 November;
Inverness, Thursday 15 November;
Glasgow , Thursday 22 November.
Each starts at 6pm. For details
and booking (and the consultation
paper) see www.slab.org.uk .
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New professional standards to further enhance the
relationship between solicitors and their clients are being
drawn up by the Society – and the views of the profession
and the public will be critical to the success of the exercise
Options ahead on standards
The Society’s Standards Working
Complaints Commission,
Group, with feedback from a
expected to be up and running
reference group of non-lawyer
by next autumn.
stakeholders, is preparing an
The President acknowledges
“options paper”, which will
that the Commission poses a
outline a range of ways the
challenge to the profession to
system of standards could work.
raise its game, but is confident
A wide-ranging consultation
that the ongoing reform process
exercise with the profession and
presents solicitors with a
public will take place after
valuable opportunity.
Council has considered the paper
“I am in no doubt that
at the end of November.
standards among solicitors are
Society President Richard
already extremely high. However,
Henderson said it was
none of us would want
crucial to achieve as high
to rest on our laurels.
a response rate to the
It is key to the future
consultation as
that we make the
One option is to
possible: “This
whole issue of
rate
implement sepa
options paper will
standards more
al
standards for leg
provide us with the
accessible to the
practices and
opportunity to
public. We have to
individual
debate seriously the
make sure that
practitioners
core values and
those whose business
aspirations of solicitors.
brings them into contact
I urge as many as possible in the
with solicitors know what they
profession to take part in this
can reasonably expect. We are
important exercise.
determined to ensure that the
“It is also of course critical that
proposals we are developing will
any system of standards has the
provide an effective response to
confidence of the public as well
the service and conduct issues
as the profession, and that is why
facing the profession.”
we set up the reference group.
The options outlined in the
We want as wide a response as
paper will include retaining the
possible to the consultation and
status quo. However current rules
want to encourage as positive an
can be inaccessible for
engagement as possible from the
consumers and clients.
public to involve them also in
Alternatively, a simple checklist,
the process.”
or tick box, system could be
The working group, which
introduced, as might be preferred
represents a number of different
by some consumer interests. A
sectors of the profession, was set
third option would be to
up in June after discussions
implement standards that
about how to define clear and
differentiate between what is
enforceable standards that would
expected of law firms and
benefit both solicitors and
individual practitioners.
clients. It resolved to clarify the
Individual solicitors would be
current regulatory system, which
subject to a revised and
involves a complex combination
simplified code of conduct in
of practice rules, practice
relation to matters such as
guidelines and the Code of
independence, integrity,
Conduct. That objective was
confidentiality, discrimination
given greater urgency by the
and conflict of interest. Practices
establishing of the Scottish Legal
would be expected to adhere to a
fyi
principle-based set of service
standards covering matters such
as levels of courtesy, respect and
communication given to clients.
Other regulators including the
RICS and the General Optical
Council already distinguish
between individual conduct and
practice standards.
The consultation is expected to
run until February 2008. The
Society will analyse the responses
and produce a paper with
detailed proposals first for
Council and then the AGM in
May. If approval is given at the
AGM, more detailed work
will begin.
With a good response, the
President added, the Society can
develop “standards that will
allow solicitors to measure and
advance levels of customer
satisfaction, while clients will
know what level of service they
can expect to receive from a
modern, committed and
accountable legal profession”.
If you have any queries regarding
standards, please email
standards@lawscot.org.uk .
October 07 theJournal / 23
22-26 PN07-10-1a
3/10/07
3:01 pm
Page 24
Professional news Society
Booby Birds take flight
Karina McTeague of Lloyds TSB Scotland (below, right), and Elizabeth
Baker of Kidstons in Glasgow (left) were the two Scottish solicitors
among 20 women who
successfully completed a
skydive last month in aid of
breast cancer charities.
Calling themselves the
“Booby Birds”, the
intrepid flock leaped
from 10,000 feet
over St Andrews.
The stunt aimed
to raise around
£400,000.
Brussels in call for
next year’s trainees
The Brussels Office of the three Law
Societies (England & Wales,
Scotland and Northern Ireland) is
offering trainee solicitors the
opportunity to undertake a sixmonth secondment commencing in
March or September 2008. As a
trainee in the office you will assist
the Brussels team in actively
monitoring EU legal developments
across the while spectrum. Specific
tasks will include preparing and
writing the Brussels Agenda and
European Court of Justice case
reports as well as drafting legislative
updates. You will also regularly
attend European Parliament
committees and high level
conferences, offering the
opportunity to develop contacts
with key decision makers.
Trainees are invited to send their
application, which should comprise
a CV and covering letter and
confirmation from their
firm/employer of consent to the
secondment to Sarah Fleming, Head
of International Relations, Law
Society of Scotland, 26
Drumsheugh Gardens, Edinburgh
EH3 7YR (sarahfleming@
lawscot.org.uk), specifying whether
the March or the September
secondment is preferred. Trainees
interested in applying will need to
provide a letter from their
firm/employer confirming that it will
continue to pay their salary during
the secondment.
The closing date for applications
is 30 November 2007, with
interviews scheduled to take place
in Edinburgh the week beginning
10 December.
If you require an information note or
would like to discuss the secondment, please
contact Sarah Fleming.
Conflict of interest waivers
Section 190 of the Companies Act
2006 came into force on 1 October. It
requires "substantial" property
transactions (defined in s 191)
between companies and any of their
directors to be formally approved by
the members of the company. This
will need to be dealt with, and a copy
of the members’ resolution produced,
with any such waiver application
under rule 9 of the 1986 Practice
Rules (the Conflict of Interest Rules)
from now on. If the client company
24 / theJournal October 07
claims that the transaction is not
"substantial", or is exempt under s 192
or 193, evidence to substantiate that
claim will also be required.
Similarly, if the transaction is
between a company and its sole
shareholder who is also a director,
evidence of compliance with s 231
will be required with any request for a
waiver.
Bruce Ritchie, Director, Professional
Practice
News
in brief
IHT procedure
changes
With effect from 5
November, HMRC is
changing the process
for making an initial
payment of IHT by
cheque. It will be
necessary to contact
HMRC to obtain an IHT
reference and payslip
before delivering the
inventory and form
IHT200 and making
the initial payment.
See the What’s New
section at www.hmrc.
gov.uk/cto/iht.htm .
New complaints
information
The Society has posted
two new leaflets to its
website, one with
advice on handling
complaints and the
other on the Society’s
powers and
procedures when a
complaint about a
solicitor is made to
the Society. They
can be found on
www.lawscot.org.uk
under Members
information/Better
client care.
Insolvency
Practices
Council
As part of the UK’s regulatory regime for
insolvency practitioners there has been
established an Insolvency Practices Council,
to review the professional and ethical
standards of insolvency practitioners. The
Council comprises six lay members
(including the chairman) and three
professional members.
One of the professional members has
recently stood down, and the Council is now
seeking to appoint a replacement. Any
solicitor who would be interested in having
their name put forward should write to
David Cullen, Registrar at the Society
(e: davidcullen@lawscot.org.uk) with a
covering letter explaining their interest in
this position together with a copy of their
most recent CV. Applicants should have an
interest in the regulation of insolvency
practitioners.
The deadline for receipt of application
letters is Wednesday 24 October 2007.
Glasgow for
SYLA family
seminar day
The Scottish Young Lawyers
Association is holding a Family Law
seminar day on 2 November 2007 at
the Corinthian in Glasgow, starting at
9.30am for registration, bacon rolls
and coffee. The programme includes
talks from Tom Ballantine, Mowat
Hall Dick, on financial provision;
Ruth Innes, advocate, on jurisdiction;
Ross Macfarlane, advocate, on
education law; Alan Susskind, Ross
Harper, on negotiation, and other
family law topics. The conference is
priced at just £110 for members and
£115 for non-members. For more
information and booking see the
SYLA website www.syla.co.uk, or
contact Karen Wylie (t: 0131 555
0616; e karen.wylie@mhdlaw.co.uk).
Venue: the Corinthian in Glasgow
22-26 PN07-10-1a
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3:01 pm
Page 25
Obituaries
Alexander George Russell, Hamilton
On 12 December 2006, Alexander George
Russell, formerly employee with the
Procurator Fiscal Service, Hamilton.
AGE: 53
ADMITTED: 1976
New Council members
Pictured are Robert McDonald of Stronachs,
Inverness, the new member for Inverness and
points north (left), and Graeme Lawson, a
non-solicitor observer, who both took up their
Council places at the September meeting.
World Cup fever
John McGovern of Glasgow is
looking for solicitors who
would like to play in the
Mundiavocat, the World Football Cup for
Lawyers, in Alicante, Spain, between 31 May
and 8 June 2008. He is entering a team in
the over 35s category, and lawyers of that
age group who are interested in playing
should contact him at John McGovern & Co,
19 Waterloo Street, Glasgow G2 6AY (t: 0141
229 6700; e: john@johnmcgovernco.com).
Details of the tournament can be obtained
from www.mundiavocat.com (and see
Hearsay, Journal, August, 58).
Society on the global stage
The annual conference of the Chief Executives of the
European Bar Associations (CEEBA) was hosted by the Society
last month, the third time the event has been held in
Scotland. Delegates from 14 jurisdictions met at Dalhousie
Castle Hotel, near Edinburgh, from 13-16 September.
Colin Tyre QC, President of the Council of Bars and Law
Societies of Europe, was keynote speaker and his SecretaryGeneral Jonathan Goldsmith also gave a presentation.
Along with an extensive business agenda, a number of key
issues were discussed, including money laundering, the costs
of court systems around the continent and challenges
associated with operating in Europe’s internal market.
This month the Society’s Douglas Mill, current President of
the International Institute of Law Association Chief Executives
(IILACE), will chair the IILACE annual conference in
Singapore, which will be immediately followed there by the
annual conference of the International Bar Association, with
which the Society’s Michael Clancy holds four positions
including chair of the professional conduct committee.
Joyce Maud Russell (retired solicitor),
North Berwick
On 9 January 2007, Joyce Maud Russell,
North Berwick.
AGE: 78
ADMITTED: 1954
Iain Roderick MacDonald Morton,
Glasgow
On 4 August 2007, Iain Roderick
MacDonald Morton, sole practitioner,
Glasgow.
AGE: 54
ADMITTED: 1990
Michael Ian Douglas Sturrock (retired
solicitor), Edinburgh
On 27 August 2007, Michael Ian Douglas
Sturrock, formerly partner of the firm J & A
Hastie and latterly associate of the firm
Balfour & Manson, both Edinburgh.
AGE: 61
ADMITTED: 1969
October 07 theJournal / 25
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Page 26
Notifications
Entrance certificates
issued during August/September 2007
ANDERSON, Lucy Jane, LLB(HONS),
DipLP
BALDWIN, David Nathan Jones,
LLB(HONS), DipLP
BERRY, Emma Louise, LLB(HONS), DipLP
BOWMAN, John William, LLB(HONS),
DipLP
BURNS, Lisa Grace, LLB(HONS), DipLP
CAMPBELL, Ewen Malcolm, LLB(HONS),
DipLP
CANNON, Louisa Gair, LLB(HONS),
DipLP
DAVIES, Lucy Gray, LLB(HONS), DipLP
DEVLIN, Amy Vittoria, LLB(HONS),
DipLP
DOCHERTY, Danielle Sharon, LLB(HONS),
DipLP
FINDLATER, Kirsty Elizabeth, LLB(HONS),
DipLP
FORBES, David Ross, LLB(HONS), DipLP
GILROY, Kevin James, LLB(HONS), DipLP
HAMILTON, Louise Josephine,
LLB(HONS), DipLP
HEADLEY, Catriona Alexandra
Montgomery, LLB(HONS), DipLP
HOVE, Thembelihle Blessing, LLB(HONS),
DipLP
HOYLE, Hannah Kate, LLB(HONS), DipLP
JACKSON, Stephen John, LLB, DipLP
JONES, Hannah Claire, LLB(HONS),
DipLP
KELLY, Alison, LLB(HONS), MSc, DipLP
LAING, Kate Louise, LLB(HONS), DipLP
LETSON, Sarah Grace, LLB(HONS), DipLP
McGLYNN, Joanne Elizabeth, LLB, DipLP
McINTOSH, Iain, LLB(HONS), DipLP
MACKINVEN, Fraser Donald, LLB(HONS),
DipLP
MACLEOD, Lisa Marie, LLB, DipLP
MAGUIRE, Mhairi Frances, LLB(HONS),
DipLP
MANGAN, Daryl Thomas, LLB(HONS),
DipLP
MARTINDALE, Sarah Victoria Peace,
Applications for admission
August/September 2007
AHMED, Ommera, LLB(HONS), DipLP
ALLAN, Richard Colin Thomas,
LLB(HONS), DipLP
ANDERSON, Christopher Edward,
LLB(HONS), DipLP
ANDERSON, Laurie Gallacher, BA, LLB,
DipLP
ANGUS, Stefanie, LLB(HONS), DipLP
BARR, Martin Douglas, LLB(HONS),
DipLP
BRACK, Linsey Rachel, LLB(HONS),
DipLP
BRAND, Rachel Ann, LLB(HONS),
DipLP
BRUCE, Vivienne Margaret,
LLB(HONS), DipLP
BURTON, Jennifer Anne, LLB(HONS),
DipLP
CARDWELL, David Ivor William,
LLB(HONS), DipLP
CARGILL, Lynsay Katherine,
MA(HONS), LLB, DipLP
CLANCY, Kevin John, LLB(HONS),
DipLP
CLARK, Judith Lesley, LLB(HONS),
DipLP
CONNOLLY, Paul MacIntyre,
LLB(HONS), DipLP
CRAWFORD, Martin Robert Lamont,
LLB(HONS), DipLP
DARGIE, Kiera Jane, MA(HONS), LLB,
DipLP
DAVIDSON, Lisa Patricia, MA(HONS),
LLB, DipLP
DEANS, Jay, LLB(HONS), DipLP
DEWAR, Carolyn Louise, LLB(HONS),
DipLP
DOCHERTY, Lynsey Clare, LLB(HONS),
DipLP
DUNNETT, Laura Elizabeth,
26 / theJournal October 07
LLB(HONS), DipLP
FERGUSSON, Joanna, LLB(HONS),
DipLP
FLEMING, Laura, LLB(HONS), DipLP
FORBES, Hamish Douglas John,
LLB(HONS), DipLP
GALLAGHER, Kerry, LLB(HONS),
DipLP
GEOGHEGAN, Paul James Thomas,
LLB(HONS), DipLP
GILLAN, Claire, LLB(HONS), DipLP
GLENNIE, Caren, BA, LLB, DipLP
GOWANS, Ruaridh Howard MacKinnon,
LLB, DipLP
GRAY, Jennifer Sarah, LLB(HONS),
DipLP
GRAY, Robert McKenzie, LLB(HONS),
DipLP
HAIR, Laura Margaret, LLB(HONS),
DipLP
HANIF, Shabnam, MA(HONS), LLB,
DipLP
HARVEY, Morag Fiona Margaret,
LLB(HONS), DipLP
HOWAT, Erin Julie, LLB(HONS), DipLP
HUGHSON, Craig James Allenby,
LLB(HONS), DipLP
INCH, Kathryn Margaret, LLB(HONS),
DipLP
IRVINE, David John, LLB(HONS),
DipLP
JAYATISSA, Remi Nalin, LLB(HONS),
DipLP
JOHNSTON, Fergus Henry Morris,
LLB(HONS), DipLP
JOHNSTONE, Angela Dale, LLB(HONS),
DipLP
JONES, Louise Morgan, LLB(HONS),
DipLP
KAPASI, Sophie, LLB(HONS), DipLP
LLB(HONS), DipLP
MELTON, Catriona Lesley, LLB(HONS),
DipLP
MILLER, Lenina Alexandra, LLB(HONS),
DipLP
MYERS, Louisa, LLB(HONS), DipLP
NISBET, David Andrew Charles,
LLB(HONS), DipLP
PERFECT, Gemma Aitken, LLB(HONS),
DipLP
PILLANS, Judith, LLB(HONS), DipLP
POLLOCK, Christopher Martin,
LLB(HONS), DipLP
PORTER, Simon Richard, LLB(HONS),
DipLP
REEKIE, Christopher McLeod,
LLB(HONS), DipLP
SANGSTER, Gillian, LLB(HONS), DipLP
SHER, Sumeah, LLB, DipLP
SMITH, Lesley Claire, LLB(HONS), DipLP
STOBIE, Stuart Russell, LLB(HONS),
DipLP
SWAN, Heather Jane, LLB(HONS), DipLP
TEMPLETON, Steven Robert, LLB(HONS),
DipLP
THOMSON, Christopher Robert McIntosh,
LLB(HONS), DipLP
TOAL, Danielle, LLB(HONS), DipLP
KWOK, Meela, LLB(HONS), DipLP
LANG, Marie-Luise Christa,
LLB(HONS), DipLP
LAU, Ka Pui Cathy, LLB(HONS), DipLP
LAVERY, Catriona Ann, LLB(HONS),
DipLP
LEISHMAN, Keith Robert Buchanan,
LLB(HONS), LLM, DipLP
LOCKHART, Susan Catherine, LLB,
DipLP
McARTHUR, Jacqueline Jane, LLB,
DipLP
McCAFFREY, Anna Patricia,
LLB(HONS), DipLP
McCARTHY, Kelly Frances, LLB(HONS),
DipLP
McDOUGALL, Rachel Elizabeth,
MA(HONS), LLB, DipLP
McEWAN, Rachel Claire, LLB(HONS),
DipLP
McGINN, Daniel Anthony, LLB(HONS),
DipLP
McGUIGAN, Ian Wilfred, BA(HONS),
LLB, DipLP
McGUINNESS, Kirsty Elizabeth,
LLB(HONS), DipLP
MACKAY, Heather Elizabeth Cameron,
LLB(HONS), DipLP
MACKENZIE, Arran Lee, LLB(HONS),
DipLP
McLEAN, Fiona Margaret, BA, LLB,
DipLP
McLEAN, Gillian Ellen, LLB(HONS),
DipLP
MACLEOD, Neil Morrison, LLB(HONS),
DipLP
McMORLAND, Laura-May, LLB(HONS),
DipLP
McPHERSON, Jillian, LLB(HONS),
DipLP
MAIR, Gillian Anne, LLB(HONS),
DipLP
MARSHALL, Tracy Elizabeth,
LLB(HONS), DipLP
MILLER, Anne Margaret, LLB(HONS),
TRAYNOR, Claire Mary Sarah, BA(HONS),
LLB, DipLP
TULLOCH, Joanne Emma, LLB, DipLP
UL-HASSAN, Samerah, LLB(HONS),
DipLP
WALKER, Lorna Joyce, BA(HONS), LLB,
DipLP
WALLACE, Graham Callan, LLB(HONS),
DipLP
WATTS-RUSSELL, Henrietta Rose,
BSc(HONS), LLB, DipLP
WEBB, Ross Alan, BA(HONS), LLB, DipLP
WELCH, Ann Marie, LLB(HONS), DipLP
WHITE, Shona Paxton, LLB(HONS),
DipLP
WHYTE, Greg William Thomas,
LLB(HONS), DipLP
WICKS, Steven Andrew, LLB(HONS),
DipLP
WOOD, Angus Robert, LLB(HONS),
DipLP
WRAY, Benjamin Jack, LLB(HONS), DipLP
WRAY, Zoe Hunter, LLB(HONS), DipLP
WRIGHT, Katherine Mary, LLB(HONS),
DipLP
WRIGHT, Stephanie Claire Grace,
LLB(HONS), DipLP
ZANRE, Michael Buchan, LLB, DipLP
DipLP
MONIE, Stuart John, LLB(HONS),
DipLP
MORGAN, Rosalind Carole,
LLB(HONS), DipLP
MUKHERJEE, Elora, LLB(HONS), DipLP
NOLAN, Martin Gerard, LLB(HONS),
DipLP
O’CONNELL, Cecilia Ann, LLB(HONS),
DipLP
O’MAY, Alyson, LLB(HONS), DipLP
PORTER, Lewis, LLB(HONS), DipLP
RASUL, Syema, BSc, LLB, DipLP
ROSS, Eilidh Isabel Margaret,
MA(HONS), LLB, DipLP
SMITH, Emma Joan, LLB(HONS),
DipLP
SPY, Jennifer Ann, LLB(HONS), DipLP
STEVENSON, Janet Ruth, LLB(HONS),
DipLP
STRONACH, Victoria Jean, LLB(HONS),
DipLP
THOMAS, Jennifer Anne, LLB(HONS),
DipLP
TREANOR, Caroline Anne, LLB(HONS),
DipLP
TULIPS, Jacqueline, LLB(HONS),
DipLP
TURNBULL, Adam, MA(HONS), LLB,
DipLP
VANDECASTEELE, Judith Mary,
LLB(HONS), DipLP
WALKER, Gary Gibb, LLB(HONS),
DipLP
WALKER, Shelley Dawn, LLB(HONS),
DipLP
WATSON, Johanne Sinclair,
LLB(HONS), DipLP
WATTS, Helen Mary, BA(HONS), LLB,
DipLP
WRIGHT, Stephen Stewart,
LLB(HONS), DipLP
WYLIE, Laura Christina, LLB(HONS),
DipLP
27 People07-10-1a
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Page 27
People
Intimations
for the people
section should
be sent to:
Denise Robertson,
Record Dept.,
The Law Society
of Scotland,
26 Drumsheugh
Gardens,
Edinburgh EH3 7YR
Email:
deniserobertson@
lawscot.org.uk
Onthemove
Patricia Doogan, Tracey Campbell-Hynd, Buchanan MacLeod
Brian Dempsey’s monthly survey
of consultations that might be of
interest to practitioners
… the point is
to change it
Incapacity regulations
The Scottish Ministers are consulting on somewhat technical
draft regulations to implement a number of the changes to
the Adults with Incapacity (Scotland) Act 2000 consequent on
the Adult Support and Protection (Scotland) Act 2007. In
particular the regulations would set out the classes of persons
who, in addition to solicitors, can sign certificates in relation
to registration and revocation of powers of attorney and also
determine the content of the certificates themselves. The
government has sent copies of the consultation document to
law centres as well as voluntary organisations and local
authorities, but the voice of other legal practitioners might
add something. See the document at www.scotland.gov.uk/
Resource/Doc/194712/0052307.pdf .
Respond by 8 November to Kirsty Robertson at
adultsincapacity@scotland.gsi.gov.uk .
BUCHANAN MACLEOD, Glasgow, are delighted
to announce the appointment of two new
associates. Patricia Doogan joins them from
A & S IRELAND and will work in the Private Client
department, and Tracey Campbell-Hynd joins
them from MILLER SAMUEL LLP to work in the
Defended Litigation and Insolvency department.
Simon Guest intimates that he has
resigned as a partner of BELL &
SCOTT LLP to become a director of
APPLECROSS PROPERTIES as a
Director of Business Development
with special responsibility for all of
their legal affairs. He can be contacted
at their new offices at 7 Lochside
View, Edinburgh EH12 9DH
(tel: 0131 314 0012).
Alison Inglis is pleased to intimate that
she has been promoted to the position
of Senior Crown Counsel to the
FALKLAND ISLANDS GOVERNMENT.
MACARTHUR & CO, Inverness, are
pleased to advise that Caroline
McIntosh (formerly of R & R
Urquhart) has joined the firm as an
assistant with effect from 2 July 2007.
fyi
Send your
raphs for the
og
ot
ph
:
people section to
t
ec
nn
co
r@
te
pe
.co.uk
communications
McCORMICK & NICHOLSON,
Newton Stewart, and SMITH
& VALENTINE, Girvan, are pleased
to announce the appointment
of Karen Fisher as an associate
of the firms with effect from
1 September 2007.
PAULL & WILLIAMSONS,
Aberdeen wish to intimate that
with effect from 6 September 2007
one of their associates, Alasdair C
Freeman, was assumed as a partner
in the firm.
T C YOUNG, Glasgow and
Edinburgh, are pleased to intimate
that with effect from 1 September
2007 Karen Harvie, who heads the
Employment Law division, has been
assumed as a partner of the firm.
Reforming succession
The Scottish Law Commission’s Discussion Paper on
Succession (DP no 136; Journal, September, 14) tackles a
number of vexed questions with most discussion seeming,
naturally enough, to be on who gets what on intestacy (Part
2) and what, if anything, should be provided by way of
protection from disinheritance (Part 3). Having recently taken
on the burden of being an executor, one of the
“miscellaneous” matters closest to your author’s heart is the
question of bonds of caution, which appear sometimes simply
to be mechanisms for transferring money from the estate to
an insurance company in return for them taking on no
responsibility or liability whatsoever for anything. See the
paper at www.scotlawcom.gov.uk/downloads/dp136.pdf .
Respond by 31 December to Dr David Nichols at info@scotlawcom.gov.uk .
A quick reminder …
As noted last month, the SLC consultation on damages for
wrongful death is open until 30 November – see the
discussion document at
www.scotlawcom.gov.uk/downloads/dp135.pdf .
The Scottish Government/Executive is still looking for
individuals and groups to join in its “national
conversation” on Scotland’s constitutional future (though
the quality of the discussion seems to be rather poor so
far) via www.anationalconversation.com .
October 07 theJournal / 27
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Page 28
Professional practice Marketing
It is often said that the most effective way
to grow a business is to sell more to existing
clients. However lack of knowledge can
be a serious barrier. Will Kintish suggests
a strategy to overcome this
Know the
need, know
the cure
There are basically four ways to grow
your top line in a sustained and
constant manner:
1. Gain new clients
2. Sell more services to existing clients
3. Don’t lose clients to the opposition
4. Increase your fee rates
No 1 is the hardest and most costly.
No 4 can be difficult. No 3 should be
easy but often isn’t. Let’s focus on no 2.
The difficulties
Partners worry about losing control
of “their” clients.
Reward and recompense is often low
or non-existent.
Bigger firms work in deep silos,
neither knowing their colleagues in
other service lines nor understanding
much of what they do.
Because they don’t know, there tends
to be a lack of trust in others’
capabilities.
Because they don’t understand, they
feel uncomfortable even mentioning
other services available.
They hate selling!
The paradox
A major complaint by clients is “our
professionals don’t understand us well
enough”; “we have to keep telling them
what we’re all about”; “we’d like the
relationship to be more rewarding”. It
should be so easy in a firm which has
28 / theJournal October 07
Just because
you are all
badged under
the same
company name
doesn’t mean
you’re going to
like and trust
others with the
relationship
with your
existing
connections
and clients
lots of different areas of expertise to be
able to really know a client and what
their needs and aspirations are, and
then fulfil them. But the general
enthusiasm for offering more services
and therefore solutions is, at best,
mediocre. Too pushy, too salesy.
If you always think first “What’s in it
for the client?”, then you will need to
spend more time with them, often on a
non-feeing basis. What then happens?
Trust. At that point clients will be more
interested and amenable to suggestions
to increase your offer of help.
Leadership and strategy
If I was head of business development I
would stop all activities proactively
looking for new clients for, say, six
months. Don’t worry, most new
business comes anyway from referrals
and existing clients without anyone
actually doing anything.
I would generate a whole new area
of marketing – the internal market –
where I would create all sorts of
activities to ensure people from
different services lines communicated
in an informal manner. That way,
people get to know others from the
different silos and exactly what they do.
Create speed networking evenings,
drinks parties (these won’t be
unpopular!), get some table football
games or other entertainment in, etc
etc. The cost in money terms won’t be
high but you do need to create a fun
atmosphere to attract people in who
have to give of their time.
Forget selling
The overall aim is to introduce services
and colleagues who can provide those
services to existing clients. I think
“selling” is an outmoded activity.
Modern business development should
include:
Understanding your clients and
what they want to achieve
Asking the right questions
Listening carefully
Spotting an opportunity to help
Offering a solution to their problem
Solving the cross-selling problems
The main reason for lack of crossselling and integrated marketing is lack
of knowledge. Lack of knowledge of
the clients’ needs, lack of knowledge of
28-33 PP07-10-1a
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12:43 pm
Page 29
5. Introducing a colleague, your area of
expertise to an existing client
6. Introducing a colleague, different
area of expertise to an existing client
7. Introducing a colleague, your area
of expertise to a new contact at an
existing client
8. Introducing a colleague, different
area of expertise with a new contact at
an existing client
what other departments can offer and,
as importantly, not actually knowing
who your colleagues are in those other
service lines. Just because you are all
badged under the same company
name doesn’t mean you’re going to
like and trust others with the
relationship with your existing
connections and clients.
The players and their services
There are four players and (say) two
services in the game of integrated
business development. In fact eight
combinations:
1. You, your area of expertise with an
existing client
2. You, your area of expertise
introducing a new contact at your
existing client
3. You, offering a new service to an
existing client
4. You, offering a new service to a new
contact at your existing client
Making the situations work
1. To keep this client, just be totally
reliable and manage your client’s
expectations. They take it as read you
are an expert in your field. You’re a
good professional when you do what
you say you’re going to do, and do it
when you say you’re going to do it. In
the eyes of your client you’re a good
professional when you promise it for
Wednesday and deliver on Tuesday.
You’re not good when it arrives on
Thursday.
2. It can become dangerous on
occasions when your main contact at a
client either moves roles or, worse still,
moves on. As soon as you know of this
change, do everything in your power to
set up a three-way meeting for your
existing contact to introduce you to
their successor.
3. Don’t sell but do, casually, mention
that as well as doing A you now do B.
Be prepared to answer, “What expertise
and knowledge do you have in this
new area?” Maybe you will need to do
this new work at a lower cost until trust
is gained and you really are an expert in
doing B.
4. This won’t be easy. You will need to
ensure that the bond between you and
your existing client is very strong.
When it is, it will be that person who
can make the appropriate
introduction.
5. As you get busier you will want to
delegate your work to more junior
people. Please don’t just do it; your
client will feel rejected. I suggest you
introduce this new person in a social
setting and watch the body language.
At the end of the get-together (don’t set
it up as a meeting) be honest with
yourself and decide whether the
chemistry is right. If it’s not, you don’t
want to lose a client, do you? If you feel
it may work, check it up with the client
after a short time. This is delegation,
not abrogation.
6. This will be similar to no 5, but you
won’t be in as much control as it’s
likely to be a peer you are introducing
and an area you are not particularly
familiar with. I hope you know and
like them (well at least respect them!).
7. Here the pivotal person is your
existing contact at the client’s. This can
Don’t miss
in this
section
Integrated
marketing
28
IT: A small
practice’s tale
30
Risk management:
Fraud – compliance
monitoring
32
be fraught with danger and needs to be
handled carefully. Again, it is best to get
together in a social or sporting
environment to start building the
relationships.
8. This is similar to 7 but you won’t be
as close to the situation as it’s another
area of expertise.
Helping, not selling
Apart from no 1 above, all the other
scenarios are “selling opportunities”.
But a word of caution. Stop selling, in
the time-honoured sense. No one likes
to be sold to, particularly by
inexperienced and often unwilling
sales people.
Most people in the professional,
financial and technical world find
business development difficult at best
and repugnant at worst. When you spot
a potential opportunity, think “help”
rather than “sell”. At the end of the day
people will only use your service if they
have a challenge or issue they can’t sort
for themselves. You only get paid for
solving that problem. When you have
heard something which makes you
think, “That person has a challenge
there; we can solve it or add value”, you
really are a true modern-day all-round
professional.
The key skill needed to be an
effective business developer and a
member of the integrated marketing
team is to have knowledge of what
other service lines do and ask the right
questions. Whether you are involved in
scenarios 2-4 or 5-8, use the first
meeting as a fact find. Spend far more
time being interested rather than
interesting. Let the other person do
most of the talking; be a good listener;
encourage others to talk about
themselves. You can’t possibly help
anyone unless you hear what their
problem is in the first place.
Go away from that meeting with
information. It takes time to build
relationships, particularly when you
take a colleague with you. Spend time
on the small talk; get the client to
know this new person in their life. It’s
only through time that the new
person can bond with the client
you’ve been advising for a period of
time. When you go for the “sell” too
quickly, it can spoil a beautiful
relationship you built.
Will Kintish practised as a chartered
accountant for 30 years until his firm
merged with a national firm. He is now a
full time professional speaker and trainer,
particularly on the vitally important topic
of networking. Visit his website
www.kintish.co.uk for lots of free and
valuable information.
October 07 theJournal / 29
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Professional practice IT
Reports abound of the uncertain outlook for high street
firms, but one such practice has discovered how IT can
transform its prospects, and those of the next generation of
solicitors. Peter Nicholson went to find out more
The file at
your fingertips
A small family firm in Hamilton
has transformed its business
model through its enthusiastic
adoption of an integrated IT
system – and all at a modest cost.
Two years ago Nicholas J
Scullion & Co was an established
firm with two partners, a staff of
eight, but no computers that
could connect with each other or
with the outside world. Now its
three partners and 24 staff all
operate through networked time
recording and case management
systems, and are looking for new
premises as their present office
reaches maximum capacity.
It is often said that a law
practice has to adopt a business
mentality to survive nowadays. It
may be no coincidence that the
catalyst for change was the arrival
from the world of business of the
current managing partner
Nicholas Jonathan Scullion, son
of Nicholas James Scullion who
founded the firm 27 years ago.
With an LLB and five years’
experience as a business
development manager with
Proctor & Gamble, followed by a
commercial property traineeship
in Glasgow, the younger Scullion
came to the firm with a rather
different outlook from that which
had previously prevailed.
Time for reappraisal
“When I came here the office was
really quite traditional in the
sense that we had typists, we had
secretaries… There was no
networking between computers,
no internet, no email, no server, it
was just word processing, that was
really it. All of our reports were
ordered over the phone or by fax.
The fax was by far and away the
busiest machine in the office.
“We all took a decision quite
Trainee territory
Thanks to their case management
system, the four solicitors in the practice
(three partners and an assistant) can
watch over a vastly increased number of
transactions, in the hands of paralegal or
other support staff – and no fewer than
six trainees, the maximum permitted for
the size of partnership, and a clear sign
that the firm is bucking the trend among
smaller practices. While some solicitors
maintain that a trainee is a net cost to a
firm for their first year, Nicholas Scullion
reckons that a trainee newly in the door
can be paying their way within four
months. “We give all trainees that are
30 / theJournal October 07
starting a buddy who’s currently working
in the department, then they’ll do parts of
transactions, working their way through
them using the case management system
until they get the confidence to start
taking a caseload of their own.”
He continues: “When I came to the
office we had taken on maybe two
trainees in 10 years, and there was a lot
of resistance initially from the other
partners to bringing people who were not
qualified into the business. Because what
are they going to do? How can they earn
fees? How can you monitor the quality of
their work? All of these things have been
addressed by the systems that we have.”
It is well known that general practices
often have difficulty finding suitable
newly qualified staff, in a world where
most traineeships are offered by bigger
firms. In the result the new solicitor may
well be developing a specialism, “but not
have the experience of seeing clients, of
running a transaction beginning to end, of
having the confidence to actually put into
place what they’ve learned at university”.
“We maybe can’t keep everybody on
here, Scullion adds, “but when they leave
this office they’ll be trained in soft and
hard skills.”
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Converts: the Nicholas
J Scullion & Co team
quickly after I joined the office
that we really needed to get with it
in terms of IT and take advantage
of changes in delivery of legal aid,
ARTL, processing of court cases
etc: we thought that when these
developments come, we want to
be ready. In addition we wanted
to increase and improve the
quality and volume of work that
we were processing, and when
you’re increasing that you need to
look very carefully at two things:
how do you retain or improve
profitability if you’re doing new
work, and how do you control it?”
Fast forward to today. After
retaining the services of Glasgowbased technology broker Richard
Scott, who suggested systems and
budgets to suit the firm’s mindset
early on, the firm has successfully
combined two systems. First was
LexisNexis Visualfiles, which
supports Transact Direct, a fully
automated residential
conveyancing package; and now
LawWare, which supports all the
firm’s transactions including the
cash and time recording aspects.
“The way it works is that when
a file is opened it is opened on
LawWare, so we know which fee
earner is responsible for it and
how many files they’ve got live,”
Scullion explains, “or how many
cases they’ve got and what the fees
are and how they spend their time
etc. With conveyancing files, as
well as being on LawWare for the
financial side, the styles and letters
and the day-to-day conveyancing
are done by Visualfiles.” Fee notes
and cash statements are all done
automatically, the result being
that in the whole office there are
now only two part time
secretaries; formerly there were
more secretaries than fee earners.
Low budget, more feeing
Nor is the place crawling with IT
people to run it all – just an
administrator with a relevant
Higher. And the switch in the
balance of employees from
support staff to fee earners has
resulted in an impressive jump in
profitability in only a year.
When Scullion claims that the
whole project has been done on a
very tight budget, less than
£10,000, one’s eyebrows do tend
to raise. But the conveyancing
software is paid for at a fee per
transaction – £25, which can be
charged to the client – and the
capital outlays were consultant’s
fees, training, and the cost of
installing the office network
including the LawWare system.
New computers and additional
staff came from the increased fees.
Though all his staff now speak
enthusiastically of their new work
environment, it was not always
thus. It took a lot of persuasion in
some quarters before the old cash
system was pensioned off – but
with a lot of patience, help and
training from the new suppliers,
the transition was successful and
again eliminated the office’s
dependence on one person as a
channel for transactions. The two
existing partners were very
enthusiastic supporters of the new
systems and ensured their success.
agents”, says Scullion. “Our client
profile has expanded. As well as
servicing repeat clients
predominantly living in the
Hamilton area, we now act for
clients referred to us from estate
agents in other towns. If a client
does not have a solicitor, the estate
agent will recommend that they
use us. We now have the
confidence to say we can handle
this number of cases per month
and so we’ve won a lot of business
through having the system.”
Criminal work has been
similarly streamlined. The firm is
now involved with both LawWare
and the Scottish Legal Aid Board
in developing summary criminal
modules, with templates for the
more or less standard letters at the
various stages of a case. “Where
before we had a full time legal
secretary doing criminal dictation,
we now have a paralegal and she
spends more time on actually
doing the work, contacting the
client, arranging the cover, making
sure the statements are in, more
useful work which solicitors
would have had to do before.”
Competition lives
Scullion & Co is one small
practice which claims to have no
fears over the advent of “Tesco
law”. “Bring it on!” Nicholas
Scullion asserts. “We don’t have
all our eggs in one basket here.”
He believes his firm can offer a
wider, and better, service at a
competitive price.
“This business is a people
business: whether you’re buying
or selling a house, have a
problem with the police, or are
leasing premises for your
business, it’s all about people.
Even the corporate work we do,
it’s small businesses, these are
people who are making great
sacrifices to come to us, and to
everyone who makes that choice,
you’ve got to say, thank you for
giving us your business, because
if you didn’t then we wouldn’t be
here. So we like to think that we
prepare all our team very well for
whatever they go on to do, and as
I said that’s because my
background is in business
development, customer service,
not so much in law.”
Managed volume
How readily did the investment
translate into new business? On
the conveyancing front, “Very
quickly it enabled us to greatly
increase the number of
transactions that we progress,
because the partner then can see
the allocation of work, and if
somebody calls in without the
person being there, you can look
at the case and see what stage
they’re at, without the physical
file.” In addition, as the firm
doesn’t do estate agency, doors
have been opened with estate
agents – who can also look online
and see the status of their
transactions. “Whereas before I
would say I can’t take on that work
because I’ve got nobody to do it
and I don’t have the systems, now
we get a lot of work from estate
October 07 theJournal / 31
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Professional practice Risk management
Concluding his two-part article on strategies to combat
the risk of fraud, Alistair Sim of Marsh suggests that
consistent compliance with risk controls cannot be taken
for granted and that training and compliance monitoring
have important parts to play
Fraud:
making your strategy work
Last month’s article focused on
identifying fraud risks that arise for
law firms. It suggested that risk
controls start with a statement of a
firm’s policy and a commitment,
from the top, to ensuring that the
firm is never regarded as a “soft
touch”. Examples of risk controls,
for illustration, appear in the table
opposite. But as with any risk
controls, devising and putting tin
place fraud risk controls is not the
end of the process. Monitoring
compliance may reveal deviation
from the intended controls, and
perhaps the need for modification
of risk controls or for training.
Monitoring
Do you know the extent of
compliance (or non-compliance)
with the firm’s:
employee screening procedures?
client vetting procedures?
password security protocols?
office insurance conditions etc?
Do you know if exceptions are
being made? Are there differences
between practice areas/offices?
Perception: “If we comply with
all rules and regulations, we ought
to be safe.”
Reality: Compliance may be tight,
but fraudsters may find a loophole
and exploit any weaknesses.
There is evidence to indicate that
sometimes competing priorities
arise as between fraud risk
management and what some
describe as “the client experience”.
In other words, rather than cause
inconvenience to clients and
prospective clients, firms may
32 / theJournal October 07
occasionally relax procedures in
relation to vetting of new clients or
new instructions. Relaxing the
firm’s normal requirement that
new clients should be met face to
face, to spare a client the
“inconvenience” of getting time off
work, had the consequence in at
least one unfortunate case that the
solicitor became the victim of an
identity fraud.
Such an approach, while wellintentioned, is misguided. Firms
should adhere to a strict
application of policies and
procedures. Demonstrating a
willingness to deviate may be
precisely the signal a fraudster
wants that there are weaknesses
that can be taken advantage of.
Instances have arisen where
firms have discussed and agreed
with insurers a bespoke set of
minimum standards of control in
relation to (optional) fidelity
guarantee insurance and,
following a fraud (which would be
covered by that insurance),
investigation reveals that the
practice has not been complying
with those minimum standards.
By monitoring compliance with
the firm’s fraud risk controls:
deviations from the intended
controls can be detected and
addressed, whether by training or
by modification of risk controls;
the firm’s policy on fraud risk
management is supported and
reinforced and is shown to mean
precisely what it says.
Training
An effective training regime
reduces the risk that, after a
fraudulent event, colleagues say:
that the reason they failed to
follow a particular procedure was
they did not properly understand
the procedure or its purpose;
that, in retrospect, they realise
they ought to have spotted
warning signs that should have
elicited suspicion and enquiry on
their part.
Many frauds succeed because of
a reluctance by employees to
report suspicions and because
there are perceived barriers to
reporting and whistleblowing.
Ideally, as well as ensuring
employees understand the purpose
and operation of the firm’s risk
control procedures, training
should also be aimed at raising
awareness of what to look out for
and encouraging them actually to
look. Many fraud risk
management commentaries talk of
“red flags” – potential warning
signs of fraud. For example, in
relation to employee frauds, David
Buchanan-Cook (Journal, October
2006, 36) identifies:
the model employee who works
long hours, particularly if not
reflected in billable time;
the employee who regularly fails
to take annual leave or who calls in
unexpectedly when on holiday;
an individual who refuses, or
does not seek, promotion;
missing documents or files;
changes in employee’s lifestyle,
e.g. conspicuous spending;
an employee who is overprotective of duties and is reluctant
or refuses to delegate certain tasks;
addictions, such as alcohol,
gambling, drugs;
computer usage outwith normal
hours, or system access via absent
or former employees’ passwords;
copying large amounts of data;
low employee morale.
The author urges treating this list
with caution, but suggests that two
or more of these factors together
may be cause for further enquiry.
Response to a fraud
It ought to be clear who, in the
event of discovery of a fraud
situation, will report and take
responsibility for the investigation.
Depending on the nature of the
fraud, any notification to insurers
ought to be made without delay.
Alistair Sim and Marsh
Alistair Sim is a director in the FinPro (Financial and Professional Risks) National
Practice at Marsh, the world’s leading risk and insurance services firm. To contact
Alistair, email: Alistair.j.sim@marsh.com .
The information contained in this article provides only a general overview of
subjects covered, is not intended to be taken as advice regarding any individual
situation and should not be relied upon as such. Insureds should consult their
insurance and legal advisors regarding specific coverage issues.
Marsh Ltd is authorised and regulated by the Financial Services Authority.
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Suggested further reading from the Journal>
October 2006, 36; December 2006, 34: Employee fraud
March 2005, 48: “Beware: mortgage scams”
Considering the potential for
adverse PR within the firm and
beyond, there ought to be a plan
in relation to communication, as
appropriate, to staff, clients and a
wider audience.
Learning from the adverse
experience ought to result in a
tightening of controls to minimise
the risk of any recurrence.
February 2005, 36: IT systems and policies
August 2007, 36: Anticipating new and emerging risk areas
February 2007, 28: “Client accounts targeted again”
Risk controls: Internal fraud risk
FUNCTION
Payroll
AREAS OF RISK
RISK CONTROLS
Examples
Illustrative examples
Salary roll altered after checking/
authorisation
Independent checking of payroll cast
Salary payments inflated
Remove terminated employees immediately
Fictitious employees added to payroll
Reconcile time paid and hours worked
Fictitious invoices
Separate functions of ordering, recording of receipt,
and authorising payment
Changes to payroll to be approved
Actual amounts to budget to be reviewed
Insurance
The firm’s fraud risk management
strategy is likely to involve
insurance to some extent.
Client funds
It is not well understood but, in
the event of misappropriation of
clients’ funds, the compulsory
professional indemnity insurance
under the Master Policy covers the
liability of the principals of a law
firm, provided at least one
principal is innocent of any
dishonesty and has not condoned
or colluded in the dishonesty.
If the firm has additional top-up
cover, it is likely that it will have
the benefit of cover for
misappropriation of clients’ funds
up to the full amount of the topup cover.
The self-insured amount
(excess) in relation to a fraud claim
is twice the normal self-insured
amount – typically £6,000 per
partner rather than £3,000 per
partner (subject to the caps/limits
in the Master Policy rules).
It may sometimes be possible to
obtain insurance cover (“infill
insurance”) in respect of the firm’s
liability for the self-insured
amount (for any category of claim,
not just dishonesty claims).
Firm’s own money
The firm may have cover for theft
of its own money or goods in
terms of its office combined
insurance policy.
There are also specialised
policies (fidelity insurance/fidelity
guarantee insurance or crime
insurance) which are designed to
cover losses as a result of theft of
the firm’s own money or goods
committed by an employee or, in
some policies, by a partner of the
firm or a third party (e.g. a
computer hacker).
The cover provided by such
policies is typically subject to a
much more substantial level of
self-insured amount (excess), or
the requirement to comply with
various conditions (minimum
Goods/
services –
ordering and
payment
Goods misappropriated
Goods to be checked against invoices
Independent check of goods – monthly?
Cancel supporting documents to prevent resubmission
Signatories to review supporting documents
Signatories not to be responsible for accounting/cash records
Do not return signed cheques to originator
Cash receipts/
petty cash
Cash receipts misappropriated
Two people to attend when cash received
Bank cash received same/next day
Check pay-in slips against cash sheets
Cash receipts/access general ledger tasks separated
Powers of
attorney
Electronic funds
transfers
Common to have unrestricted authority
Separate functions of attorney and solicitor
Attorney in position to abuse power
Maintain clear records of powers of attorney
Can fraudulently obtain money
Passbooks to be retained in cashroom
Unauthorised access:
– breach of terminal security
– breach of code number
device security
– passwords compromised
Payment transfers authorised by designated person(s) using
code/passwords
Hacking
Bank’s terms and conditions
Restrict access to designated users
Pre-defined payment limits – transaction/daily
Physical security of terminal/code number device
Strict regime of password change/confidentiality
Record/investigate unauthorised access reports,
failed transfers etc
Strict segregation of duties/responsibilities
Must see supporting documentation before authorising transfers
General
Address dependencies and vulnerabilities
Security of EFT devices/passwords/combinations
Consider audit/accountants’ recommendations
Voided cheques cancelled and retained
Appropriate levels of awareness of:
– Accounts Rules
– anti-money laundering rules/responsibilities
– bank’s terms and conditions – who liable?
– money insurance policy conditions
– fidelity insurance minimum standards of control
standards of control in relation to
segregation of duties, signing
authorities and funds transfer
protocols, as well as conditions
with regard to the taking of
references for new recruits).
In relation to insurance, the risk
conscious practice will consider:
whether or not to purchase
(optional) insurances;
whether the firm complies with
whatever minimum standards of
control and references conditions
apply as conditions of cover, and
ensuring continued compliance;
what level of cover is adequate;
where there is a choice, what
level of self-insured amount
(excess) is acceptable.
The insurance policies
mentioned are intended to cover
all or part of the funds
misappropriated and the
investigation costs incurred (which
may be substantial), but none of
these insurances makes up for the
impact of stress and anxiety caused
by the fraud. While in some
circumstances there may be a
contribution from certain insurers
to the cost of public relations
consultancy, no policy
compensates for the damage done
to the firm’s reputation.
However good the cover,
prevention is far better than cure.
Take action
Compile a register of fraud risks
affecting the firm
Review effectiveness of current
controls
Establish whether controls being
complied with
Conduct gap analysis
Devise awareness training and
training plan/log
Check current insurances, their
adequacy and what they cover
Don’t let your firm be seen as a
“soft touch”.
October 07 theJournal / 33
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Page 34
Professional briefing Criminal court
Sheriff Andrew Lothian’s latest roundup
of matters criminal reveals some relevant
developments beyond the criminal courts
A wider
view
So far as ASBOs
go, I recollect
Professor Brian
Williams
explaining that
they had been
widely piloted,
extensively
researched,
universally
condemned and
accordingly
rolled out over
the whole
country
34 / theJournal October 07
Test for the Commission
in particular identified the
Some of us old-timers remember the
Commission’s essential task as being to
days when (apocryphally of course)
consider whether or not a miscarriage
what happened in the criminal appeal
of justice had occurred. It was pointed
court was that the sentence of the first
out that this could not be equiparated
appellant to have his or her case heard
with the task of the sifting judges, who
was increased ex proprio motu, leaving
had no discretion to refuse leave to
the rest of the roll abandoning their
appeal if there were arguable
appeals like lemmings jumping
grounds.
off a Norwegian clifftop.
Well, the scope of
Discounting the
appealing in criminal
discount
es
fin
de
t
Ac
06
20
The
matters is much increased
Innovation in criminal
as
ng
ivi
careless dr
lls
these days, as is evidenced
law is usually followed
fa
at
th
ng
ivi
dr
ard of
by the case of Raza v
by a spate of activity in
below the stand
d
an
nt
Scottish Criminal Cases
the appeal court. In
te
pe
m
co
a
Review Commission [2007]
spite of the undoubted
careful driver
CSOH 152; 2007 GWD 27-469.
skills of parliamentary
This involved a petition (in the
draftspersons, and indeed of
event dismissed by the Lord Ordinary)
judges setting out new ways of
for judicial review of the Commission’s
approaching old problems, there
declining to refer a case to the High
always seem to be matters in need of
Court on the basis that it did not
further elucidation. In this spirit we
consider that a miscarriage of justice as
turn to cases about discounting and
regards sentence had occurred. Leave to
ASBOs. In the first, Leonard v Houston
appeal had been refused by judges at
[2007] HCJAC 46; 2007 GWD 27-473,
the first and second sifts. It was argued
an appeal against five consecutive
that the Commission had misdirected
sentences amounting to 21 months
itself by addressing the merits of the
was refused. The appellant had
case rather than whether there was an
pleaded guilty to all charges but the
arguable appeal on the grounds that
sentencing judge had refused to apply
sentence was excessive: the use of the
a discount, taking the view that the
word “may” in s 194C(a) of the
utilitarian benefit of the pleas had
Criminal Law (Consolidation)
been cancelled out by the appellant’s
(Scotland) Act 1995 demonstrated that
various failures to attend court diets
the only test was arguability.
and other appointments.
In disposing of the judicial review,
The appeal court took the view that
the Lord Ordinary held that the
the sheriff, in the absence of any
Commission had acted properly, and
exculpatory explanation, was entitled
fyi
to conclude that this lack of cooperation was wilful and that it was
thus quite correct to regard the
disbenefit as wholly eliding the benefit.
The situation here seems to have
been an extreme one in terms of lack
of co-operation and subsequent
unnecessary public expense and waste
of time. It remains to be seen whether
courts will be tempted into fine
tuning, with a relative lack of
subsequent co-operation being (yet)
another element in the discount
calculation. We would dare to hope
not, but as we do we are conscious that
one school of thought might suggest
that any failure indicated a lack of
remorse while the opposing one
would say that some things are,
relatively, too trivial to bother about.
Unfettered discretion
So far as ASBOs go, I recollect Professor
Brian Williams, of Leicester University,
whose recent early and tragic death so
saddened his many friends and
admirers, explaining that they had
been widely piloted, extensively
researched, universally condemned
and accordingly rolled out over the
whole country. The latest episode is to
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Don’t miss
these
essential
briefings
Criminal court:
Roundup
34
Licensing:
Impact of the
Gambling Act
36
Charities:
OCSR’s dos and
don’ts
37
Insolvency:
Adminstrators’
liabilities
38
be found in Gordon v Griffiths [2007]
HCJAC 45; 2007 GWD 26-452. An
argument was put forward on behalf of
the appellant to the effect that where
someone had been charged with a
contravention of s 9(1) of the
Antisocial Behaviour etc (Scotland) Act
2004 and with a breach of the peace
arising out of the same set of facts and
circumstances, they could not be
competently proceeded against in
respect of s 9(1) where the purpose of
s 9(3)(b) was to avoid double
jeopardy.
The appeal court held that the
section had been somewhat carelessly
drafted and could be construed in the
manner contended for by the
appellant, but that in the absence of a
clear indication to the contrary it could
not be construed as fettering the
undoubted discretion of the Crown in
regard to matters which were made the
subject of court proceedings. It is not
clear that the scepticism with which the
introduction of ASBOs was greeted has
yet been proved to be unfounded.
Unwarranted objection
Brown v Donaldson [2007] HCJAC 40;
2007 GWD 26-453 has certain
interesting things to say about search
warrants. The petitioner was seeking
suspension of a search warrant granted
by a justice of the peace in the absence
of the clerk to the district court. The
argument put forward, and rejected
(one supposes without too much
difficulty), was that the petitioner’s
human rights under article 6 had been
breached, in as much as the granting of
a warrant was a judicial act and the
absence of a clerk gave this the
appearance of being other than an
independent and impartial tribunal,
thus denying the petitioner a fair and
impartial hearing.
In refusing the bill, the court
pointed out that the decision of a
justice under s 23 of the Misuse of
Drugs Act 1971 was essentially an
administrative act; it was not the
decision of a court or the determining
of any criminal charge and accordingly
article 6 could not apply. Reference
was made to Mellors v United Kingdom,
App No 34723/97, 21 May 1998,
ECHR. It was observed by the court
that where it was alleged that a warrant
had been obtained irregularly (which
was not the case here), the question
could be raised at the stage of trial if
Environment:
The Climate
Change Bills
39
Website review:
European
Parliament
40
Book review:
Charities and
Trustee Investment
(Scotland) Act
41
the Crown sought to rely on evidence
recovered under it.
Road traffic penalties
Turning aside into the realms of
statute law, and in particular the Road
Safety Act 2006, practitioners might
like to note that as from 24 September
2007 ss 14, 23-25, 27-33, 41 and 43
are in force. Of these the most
important would seem to be the
following:
Section 23 increases the maximum
penalty for careless driving to £5,000
(which suggests either something very
near dangerous or a millionaire behind
the wheel).
Section 25 provides that where a
person is convicted of using a vehicle in
a dangerous condition, the offence
being within three years of a previous
conviction for the same thing, there is
obligatory disqualification for not less
than six months.
Sections 27 and 29 respectively
increase the maximum fine for failing
to stop when required by the police,
and the penalty points for failing to
provide information about the identity
of a driver.
Section 30 defines in statute for the
first time what careless driving is.
Asking ourselves how we managed for
so many years without this, we note
that it is driving that falls below the
standard of a competent and careful
driver. Anyone who has walked down a
Parisian street and noticed bumps on
every parked vehicle may pause for
thought as to what this actually means.
Section 32 makes available the
possible alternative verdicts of causing
death by dangerous driving, dangerous
driving and causing death by careless
driving when under the influence of
drink or drugs, when someone is
acquitted on a charge of culpable
homicide in a death involving a motor
vehicle.
Child support disqualification
Finally, while it is not exactly crime
although the sanction is not unlike a
criminal one, there is the case of
Secretary of State for Work and Pensions v
Runciman 2007 GWD 27-470. This was
an appeal to the sheriff principal
against disqualification from driving
for nine months for failure to make
child maintenance payments at the
required rate. It was held that the
sheriff had applied the proper
statutory tests in terms of the Child
Support Act 1991, and that while the
disqualification would cause
considerable inconvenience, the
appellant did not need a driving
licence to earn his living.
October 07 theJournal / 35
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Professional briefing Licensing
The Gambling Act 2005 has many ramifications for
licensees of pubs and clubs who offer gaming facilities
Pub games reborn
Gambling law has been completely
transformed. The impact of the
Gambling Act 2005 has been far
reaching, as it affects every form of
gambling except the National Lottery
and spread betting – but you would
be forgiven for not realising this, as
much of the press coverage has been
given over to banner headlines of
super casinos, with the occasional
flutter of stories on poker.
The reality for the licensing
practitioner is much more
complicated, and many lawyers
across Scotland are now struggling to
deal with a ream of information from
local authorities, the Scottish
Government and the Gambling
Commission. Matters are further
complicated by the difficult
relationship between the Gambling
Act and the respective Scottish
Licensing Acts. For the majority of
licensing lawyers, the key areas of
note are the changes to gaming
machines; poker; non-commercial
gaming; remote gaming; and the
creation of licences for “family
entertainment centres” (FECs) and
“adult gaming centres” (AGCs).
Gaming machines
Any licensed premises with a permit
under the old Act can continue to
operate those machines as before.
Existing permits were automatically
converted on 1 September 2007;
however action must be taken prior to
the expiry of the existing permit. If the
operator has two machines or less, all
that is required is a letter to the
appropriate licensing board with a
one-off fee, and they then benefit
from an “automatic entitlement”
under the new system which does not
expire or require further fees. If the
operator has (or wishes to have) three
or more machines, an application for
the new licensed premises gaming
machine permit (LPGMP) is required.
Alcohol licensed premises may have
either category C or D machines
(those offering up to a maximum
jackpot of £35).
For club premises, similar
36 / theJournal October 07
Vegas nights” under the old system
fell foul of local licensing sergeants
who frowned on the practice. Now
operators can charge for entry or
participation in such events, offer
cash prizes and deduct reasonable
expenses, but again there are limits to
be observed.
provisions apply. Current operators
with Part II or Part III permissions can
continue to operate, but prior to the
expiry of their existing permit must
make an application to the relevant
licensing board. Part II operators
must apply for a club gaming permit,
and Part III operators for a club
machine permit. These permits allow
the use of higher class machines (up
to category B £500 jackpot
machines), and the club gaming
permit also allows no-limits equal
chance gaming. Lastly, all machine
operators (pubs and clubs) must
adhere to a code of practice.
Poker
Poker is now legal on any licensed
premises with a bar, although certain
limits must be adhered to. For
alcohol licensed premises, there is a
maximum stake per game of £5 per
person. This limit rises to £10 for club
premises; and if a club gaming permit
is held for members’ clubs and
miners’ welfare institutes, there is
no limit.
Non-commercial gaming
Themed gambling nights, conducted
for charitable purposes, are now legal
under the new Act. Many operators
wishing to have “race nights” or “Las
Existing
permits were
automatically
converted on
1 September
2007; however
action must be
taken prior to
the expiry of
the existing
permit
Remote gaming
The rise of internet gambling may
have some implications for licensed
premises providing online facilities.
Domestic and private use PCs are
exempt (thus allowing such activities
in hotel rooms to escape regulation),
but computers adapted to link to
poker or other gambling sites may
well fall to be considered as “gaming
machines”, the provision of which
requires to be licensed under the
new Act.
FECs and AGCs
Arcade areas in premises such as
bowling alleys or snooker halls may
well avail themselves of FEC or AGC
licences (the difference being that
AGCs are for over 18s only, but can
offer higher jackpot machines).
However my understanding is that if
the principal activity of the premises
is not the provision of machines,
there should be no need for either of
these licences. However, certain
operators may wish to set aside an
area to take advantage of the
machines such licences allow, and to
complicate matters it is a mandatory
condition of both the FEC and AGC
licence that no alcohol can be sold or
consumed: this may mean having to
“de-license” that part of the premises
set aside.
With such a glut of new provisions,
it is a safe bet that there will be many
confused operators out there.
Stephen J McGowan, of Hill Brown
Solicitors and author of “Gaming in Pubs
& Clubs: The New Law”, to be published
shortly by Scottish Licensing Law &
Practice (www.sllp.co.uk). He is also the
tutor for Central Law Training’s newly
revised paralegal course in licensing law.
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Professional briefing Charities
Working with OSCR
The Charity Regulator’s view of a number of sticking points with the
2005 Act, and some developments in the regulatory environment
Better
working
with OSCR
OSCR is holding
three informal
“Working with
OSCR” sessions in
early November, in
Edinburgh, Glasgow
and Dundee, at
which practitioners
and OSCR staff can
explore how
commonly occurring
difficulties may be
brought to a
minimum. For
details, see
www.oscr.org.uk/
events.aspx,
or contact Mark
Simpson on
01382 220446 or
info@oscr.org.uk .
The Charities and Trustee Investment
(Scotland) Act 2005 was passed over
two years ago now, but is still often
referred to as the “new” law. Perhaps
this is an indication that we – charities,
professional advisers and regulator
alike – have yet to fully understand its
intricacies. This should not be seen as a
point of shame, but rather recognition
that much of the Act represents a
considerable change to the legal
context that we all work in. Open
communication, particularly between
OSCR and professional advisers, is key
to our working towards a position
where the legislation is comfortably
embedded.
Consents and notifications
It is unfortunate that we on occasion
find ourselves faced with failure to
engage with the regulatory regime. A
prime example is the frequent
disregard of ss 16 and 17 of the Act.
Charities that wish to amend their
constitutions in relation to their
purposes, or that wish to wind up,
dissolve, amalgamate or apply to the
court in relation to one of these
actions, have to seek OSCR’s consent at
least 42 days before such action is
taken. This allows OSCR to protect
charitable assets, ensure that charities
act intra vires, and also offer assurance
to charities that the changes
contemplated will not endanger their
charitable status. Perhaps one of the
main reasons for non-compliance in
the case of trusts is that it is not always
recognised that expenditure of all the
trust capital has the effect of dissolving
the trust.
Drafting practices
We encourage practitioners to revisit
their styles and proforma documents.
OSCR is happy to look at drafts of
revisions to ensure they comply with
the Act. There are a number of
drafting practices that should be
avoided.
One is including in a constitution a
requirement to seek the consent of the
Secretary of State for specific changes to
the constitution, the charity’s
dissolution, or the destination of its
assets. What was once a common
practice intended to safeguard the
wishes of trusters or founders, is now
proving particularly difficult for
charities. Given OSCR’s specific
functions – most of the instances for
these consents would fall under either
s 16 or s 39 – the Secretary of State and
Scottish Ministers are understandably
disinclined to be drawn into these
processes.
An issue that has enjoyed some press
recently is the defining of “charity” or
“charitable” by referring to either
English or tax law, commonly s 505 of
the Income and Corporation Taxes Act
1988. Section 7(4)(a) of the 2005 Act is
clear that a body does not pass the
charity test if its constitution allows it
to distribute or apply its property for a
purpose that is not a charitable
purpose. Where the purposes in a
constitution are defined by referring to
a source other than the 2005 Act, or
where the constitution permits funds –
typically upon dissolution – to be used
for a purpose defined in such a way,
that constitution fails the requirement
of s 7(4)(a) and the body therefore fails
the charity test. This is equally an issue
where the constitution does not
contain an explicit definition but will
be interpreted under a law other than
Scots law. Our website www.oscr.org.uk
has a more detailed note on this issue
and provides suggested wording to
resolve this matter.
A further point that may seem selfevident but is nevertheless worth
mentioning, particularly in the context
of legacies, is the need to draft for
contingencies. One cannot assume that
a particular charity will be around
indefinitely, or that OSCR would be
able to provide an authoritative view as
to the successor organisation of a
former charity.
Informal opinions
OSCR is regularly requested for
“informal opinions” on constitutions
proposed for bodies intending to apply
for entry on the Scottish Charity
Register. Our experience is that while
purposes expressed in the draft may
well appear acceptable, difficulties can
arise when it transpires later that the
body’s activities are not in pursuit of
these purposes, or cannot be
considered to provide public benefit.
We are therefore reluctant to provide
informal opinions on draft
constitutions alone. We would however
welcome applications on the basis of
the draft constitution with an
accompanying statement of activities
or proposed activities. This allows us to
issue a decision in principle. We will
enter the charity in the Register on
receipt of the formally adopted
constitution.
Reorganisations
The Charities Reorganisation
(Scotland) Regulations 2007 are now
in force, enabling OSCR to approve
reorganisation schemes proposed by
charities under s 39 of the 2005 Act.
Operational guidance is now on our
website. The more clearly practitioners
explain what the changes are, why
they believe the reorganisation
conditions of s 42(2) of the Act are
met and how the outcomes set out in
s 39(1) will be achieved, the speedier
OSCR’s consideration of the
application will be.
Marieke Dwarshuis, Head of Charities,
Office of the Scottish Charity Regulator
October 07 theJournal / 37
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Professional briefing Insolvency
An insolvent football
club has helped
clarify the rules on
administrators’
liability for payments
under contracts of
employment
In the May 2005 Journal I commented
on various recent decisions on the
priority of payment of expenses in
administration pursuant to the
Insolvency Act 1986, sched B1, para 99,
particularly the definition of “wages or
salary” as discussed and reported in Re
Allders Department Stores Ltd [2005] 2
All ER 122 and Re Huddersfield Fine
Worsted Ltd [2005] 4 All ER 886.
The matter has recently been
revisited by the administrators of Leeds
United FC (see Re Leeds United
Association Football Club Ltd: Fleming v
Healy [2007] All ER (D) 385). On their
appointment by a qualifying charge
holder, the administrators immediately
sought agreements with the club’s
footballers to vary their contracts of
employment so that all or part of the
remuneration due was deferred until
the administrators could be confident
that they could pay all or part of the
deferred remuneration either as an
expense in the administration or under
the TUPE regulations on the sale of the
club’s business to another company.
Several players did not reach agreement
with the administrators within the 14
days following the administrators’
appointment. Readers will be aware
that administrators will be held to have
adopted the staff employment
contracts of the company in
administration if they have not taken
steps within that period which are not
compatible with adoption.
The Leeds dilemma
The problem facing the administrators
was that, if they did not adopt the
contracts of employment, the club
would lose its most valuable assets, as
the players would be free to move to
another club which under Football
Association rules would have no
obligation to pay Leeds United any
compensation or transfer fee. On the
other hand, without agreement on a
deferral, if the contracts were adopted
the club might subsequently incur
substantial liabilities if the players were
not paid. Accordingly, the
administrators sought a declaration
38 / theJournal October 07
Goal to Leeds
that any liabilities for damages for
wrongful dismissal to footballers
employed by the club were not payable
as expenses of the administration, were
not payable by reason of the provisions
of para 99(4) to (6) inclusive of sched
B1, and were not “necessary
disbursements” within rule 2.67(1)(f)
of the Insolvency Rules 1986 (as
amended). The players did not appear.
Briefly, para 99(4) provides that a
sum payable in respect of a debt or
liability arising out of a contract
entered into by the administrator is
payable in priority to the
administrator’s remuneration and
expenses and also in priority to any
floating charge creditor. Subparagraph
(5) applies subpara (4) to a liability
arising under a contract of
employment adopted by the
administrator, but also provides that
no account shall be taken of a liability
to make a payment other than wages or
salary. By subpara (6), “wages or salary”
includes holiday pay, sick pay and
contributions to occupational pension
schemes. The question was therefore
whether, in addition to these matters,
“wages or salary” includes sums
payable as damages for wrongful
dismissal.
Normal meaning
As Pumfrey J stated in the Leeds case,
para 99(6) is in no sense a definition of
“wages or salary”. He therefore referred
back to Delaney v Staples [1992] 1 AC
687, where the House of Lords
considered the meaning of “wages” in
s 7 of the Wages Act 1986. Their
Lordships had considered the word in
its normal sense, divorced from the
special definition in s 7. Pumfrey J
Leeds v the
players:
wages defined
In the Leeds case
Pumfrey J held that
a payment in respect
of unfair dismissal
was a damages
payment for breach
of contract, and not
“wages or salary”
as used in the
Insolvency Act
1986, sched B1,
para 99.
pointed out that whilst the opening
words of subpara (5) were wide,
applying subpara (4) to any liability
arising under the contract of
employment, the effect of subpara
(5)(c) was to restrict the provision to
payments of “wages or salary” alone,
that term then being broadened to
include the matters itemised under
subpara (6).
In his view this structure strongly
suggested that the words “wages or
salary” were being used in para 99 in
their normal meaning. A payment in
respect of unfair dismissal was a
damages payment for breach of
contract and evidently not wages,
which following Delaney was payment
for work done or to be done under the
contract of employment. The judge
therefore adopted the ratio of
Huddersfield Fine Worsted and came to
the same conclusion as that reached by
Lawrence Collins J, as he then was, in
Allders Department Stores.
The judge then considered an
argument that statutory liabilities for
redundancy payments or unfair
dismissal claims would count as
“necessary disbursements” for the
purpose of rule 2.67(1)(f) of the 1986
Rules (which apply only in England).
In such an event they would not have
super priority but would rank in
priority to ordinary creditors. Again the
judge followed Lawrence Collins J,
noting that David Richards J had
agreed with him in Trident Fashions
(Exeter City Council v Bairstow), on
which see the discussion in the Journal,
April 2007, 43.
Alistair Burrow, Head of Recovery, Tods
Murray LLP
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Professional briefing Environment
“We’re all doomed”
– or are we?
The Westminster and Holyrood governments are both promising
Climate Change Bills. Can they make an impact?
We are increasingly experiencing for
emissions over five year periods (from
ourselves the real effects of climate
2008-2012 and with three budgets
change, and few now deny mankind’s
always set in advance), but allowing
hand in causing it. The climate change
emissions reductions “purchased”
debate has also shifted from whether
overseas to count towards UK targets;
there is a problem at all (and whether
create an independent Committee
we should act on it), to what we need
on Climate Change, to advise the
to do, by when, and the economic
government on setting carbon budgets
implications of doing so.
and report on progress;
“The time is therefore
create enabling powers to
right for the introduction
legislate for future policies
of a strong legal
on emissions (including
The Stern review
framework in the UK for
new emissions trading
estimated that
tackling climate change.
schemes, again through
tries
developed coun
The draft Climate
secondary legislation); and
ce
will need to redu
Change Bill is the first of
introduce a new system
by
ns
io
iss
carbon em
its kind in any country.”
of
government
reporting to
60-80% by 2050
(Department for the
Parliament (including on
Environment, Food and Rural
policies on adaptation to
Affairs (DEFRA), Climate Change Bill
climate change).
Summary, at www.defra.gov.uk/
It is said: “Taken together these
environment/climatechange).
measures create a coherent framework
While official consultation on the
that will ensure we achieve reductions in
draft bill closed in June, the final bill is
emissions whilst maintaining a strong
not scheduled to be introduced to the
and growing economy and high levels of
(Westminster) Parliament until spring
social welfare” (Bill Summary, above).
2008, and no doubt there will be plenty
As well as reconciling those potentially
of unofficial consultation, debate and
conflicting aims, the bill will also have to
amendment of the draft bill before then.
dovetail with the Energy white paper, the
National Waste Strategy, and planning
The UK targets and controls
system reform, among others.
In summary the bill as drafted would:
make the UK’s targets to reduce
Impact assessment
carbon dioxide emissions through
If this all sounds incredibly hard to
domestic and international action
achieve (and it will be), consider that
(26-32% by 2020 and 60% by 2050,
the Stern review estimated that
against 1990 levels) legally binding;
developed countries will need to
introduce (through secondary
reduce carbon emissions by between
legislation) a system of “carbon
60% and 80% by 2050 – and the costs
budgeting”, setting binding limits on
of inaction could be between 5% and
20% of global GDP! Further, “The risks
of the worst impacts of climate change
can be substantially reduced if
greenhouse gas levels in the
atmosphere can be stabilised between
450 and 550ppm CO2 equivalent
(CO2e). The current level is 430ppm
CO2e today, and it is rising at more
than 2ppm each year” (The Stern
Review: The Economics of Climate
Change, Summary of Conclusions, at
www.hm-treasury.gov.uk/media/9/9/
fyi
CLOSED_SHORT_executive_
summary.pdf).
It is therefore tempting to think “We’re
a’ doomed!” (as Private Frazer in Dad’s
Army regularly put it). But “Don’t panic”:
the Stern review also concludes that
necessary action can still be taken and its
costs limited to 1% of global GDP if
strong action is taken now. There is,
though, no room for complacency.
Scotland’s potential
Private Frazer might have been dourly
amused to think that our increasingly
wet and windy Scottish weather may
yet be a great asset. Installed renewable
power generation capacity (hydroelectric, wind, wave and tidal, biomass,
landfill gas) now exceeds Scottish
nuclear generation capacity. Scotland’s
renewable energy potential is in any
case far greater than the capacity
currently installed. We are therefore
promised a draft Climate Change Bill
from the Scottish Parliament (in late
2008), to cover devolved
environmental policy. The First
Minister wants to commit to an
emissions reduction target of 80% by
2050 and favours rejecting new nuclear
power in favour of more renewables.
Otherwise the Scottish Bill is likely to
mirror the Westminster Bill.
Big problems require big solutions.
Even radical Climate Change Bills will
fall short in some areas. The omission of
aviation and shipping emissions from
the current bill was described by Friends
of the Earth as like “a calorie controlled
diet that opts to exclude calories from
chocolate”. Valid questions regarding
what happens if the government fails to
hit its own targets have been raised. But
the bills will be a vast step forward and,
as the old Chinese proverb says, “the
journey of a thousand miles starts with a
single step”. All of us will, as citizens,
business people and solicitors advising
clients, require to make that journey.
Robin Priestley and Dixcee Fast, Planning
& Environment Group, Anderson Strathern
October 07 theJournal / 39
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Professional briefing Web review
Quality
viewing
The European Parliament has few powers and many
interpreters – how do its websites measure up?
BBC Website Guide
http://tinyurl.com/k55ph
As the European Parliament will be less
familiar to many solicitors in Scotland
than either Holyrood or Westminster, I
thought I’d begin with this useful
beginner’s guide. Although written in
2004, it adequately deals with more
up-to-date matters (including
Bulgarian and Romanian accession and
changes to MEPs’ salaries) due to the
slow pace of change in the EU. As you
would expect from the BBC website
(www.bbc.co.uk), it is detailed enough
to be interesting and useful, without
including so much information that
the reader gets bored or lost.
That two of the six headings are
“salaries and expenses” and “apathy”
says a lot about public perception of
the European Parliament. That
perception may seem well founded to
some when they read that “MEPs get
150,000 euros per year for office
expenses and are not obliged to
account for this expenditure”, and
“They are also reimbursed for full-price
air travel to and from their home
country even if they fly by low-cost
airline.”
European Parliament
www.europarl.europa.eu
The European Parliament’s official
website is available in 22 different
languages. I shall be reviewing the
English version.
First, checking information on your
MEPs is dead easy. From the home
page, you are only three clicks from the
list of Scottish MEPs. One more click
will give you the page for one of those
seven to examine in more detail. It is
not always apparent from the EU party
groupings which political parties the
40 / theJournal October 07
MEPs are part of (e.g. Scottish Labour
Party members are listed as part of the
socialist group), so that information is
included. There is a superb integrated
search function which takes the user to
that MEP’s speeches, motions,
questions, reports, opinions etc.
Browsing through this, I was very
impressed with how well it worked and
it is an ideal way for keeping tabs on
your MEPs. The declarations of
financial interests are also available for
download from the website in PDF,
following pressure from comedian and
campaigner Mark Thomas
(www.markthomasinfo.com).
EP Live is the European Parliament’s
audio and video service. As the name
suggests, you can view live footage of
the parliament in plenary session, and
view previous sessions. There are also a
number of “Eurinfo” videos in the
library which take the form of short
documentaries on various topics of
interest in European law, from
European football, to the Euromed free
trade area and air pollution, to the
inquiry into the Equitable Life
Assurance Society. None of these are
ever likely to win an Oscar, but they are
certainly engaging enough, and I found
them to be informative as well. There
are also audio recordings to download
as MP3s, including summaries of
official reports by the
rapporteurs themselves: perfect
for the busy European law
Who writes
this column?
The website review
column is written by
Iain A Nisbet of Govan
Law Centre
e: iain@wordjam.org
All of these links
and hundreds more
can be found at
www.absolvitor.com
practitioner on the move. I listened to
the report on EU-Russian relations, and
learned a lot.
As you know, in terms of article 194
of the Treaty of Rome, any citizen of the
European Union may exercise their
right to petition the European
Parliament. The website both explains
the form for such petitions and allows
them to be drafted and submitted
electronically. However, this seems to
be a rather more formal process than
the equivalent on the 10 Downing
Street website where, by coincidence,
one of the more popular petitions is
calling for a referendum on the new
proposed EU constitution
(http://petitions.pm.gov.uk/EU-treatyNON).
Overall, the website is terrifically well
organised. There is a huge amount of
information and for it to be so easily
accessible to even a first time user is
testament to the skills of those who
have created the site.
UK Office of the
European Parliament
www.europarl.org.uk
Not only is there a UK Office of the
European Parliament, that office also
has a branch in Edinburgh (just next to
our own parliament in Holyrood),
with a particular remit to promote
inter-parliamentary contact between
the European Parliament and the
Scottish Parliament. This website has
much of the same information as the
main European Parliament site, but
with a specific UK focus. In fact there’s
actually less information on this site for
things like MEPs – although you can
get links to your MEPs’ websites here
(which are not available on the main
site). In addition, there are a few
features unique to the UK Office, e.g.
leaflets for UK schoolchildren and
information on procurement.
34-41 PB07-10-1a
3/10/07
3:44 pm
Page 41
Professional briefing Book review
The first fully annotated version of the 2005 Act to become
available is presented clearly and helpfully
Charities and Trustee
Investment (Scotland)
Act 2005
S R Cross and P J Ford
PUBLISHER: W GREEN
ISBN: 0 414 01663 7
PRICE: £38
Suggestions
for future
books
Please send to: Alistair
Bonnington, The Law
School, The Stair
Building, University of
Glasgow, G12 8QQ
e: alistair.
bonnington@
bbc.co.uk
The Charities and Trustee Investment
(Scotland) Act 2005 heralded a new era
in charity law in Scotland. For the first
time, a statutory regulator dedicated to
the charity sector exists with a broad
range of powers of inquiry and
direction. Some trustees’ powers are
now framed in legislative form for the
first time. Step changes in the annual
reporting regime for charities and in
the area of regulatory consent to
constitutional amendments mean that
charity trustees have new obligations to
fulfil. There is a great deal of new
material for practitioners and their
clients to absorb.
So much the better that Cross &
Ford’s text on the Charities and Trustee
Investment (Scotland) Act 2005 has
been published. This text, which is the
first fully annotated version of the Act
to become available, is aimed at private
client and trust lawyers and charity law
specialists – and is also targeted at
those involved in administering,
managing and setting up charities as
well as charity trustees themselves.
The text follows the familiar W
particular emphasis on evidence given
Green format for annotated statutes,
to the Communities Committee and
and is presented clearly and helpfully
subsequent ministerial statements. The
with appropriate cross-references
predecessors of the bill, including the
throughout. The annotations are
McFadden Commission, are also given
particularly useful and bring in strands
due attention.
of existing practice, up-toThe difficulties which
The reader’s
date references to case law
cross-border charities might
understanding
and links with other
face in terms of, amongst
of the 2005 Act
legislation. That the
other things, potential dual
is greatly
commentary provides
regulation by OSCR and the
enhanced by
particular depth in selected
Charity Commission for
the authors’
areas – for example, the
England & Wales, are
references to
detailed notes on charity
covered: Cross & Ford’s text
the bill’s
trustees’ general duties
provides an excellent starting
progress
under s 66 of the Act, and
place for those involved with
through the
the extensive material
charities operating in more
Scottish
included on the charity test
than one UK jurisdiction.
Parliament
and public benefit test
Practice north and south of
under ss 7 to 9 of the Act –
the border is highlighted
is especially welcome and makes this
and leads are frequently given to more
book all the more invaluable.
in-depth sources.
As well as highlighting the Office of
This textbook is undoubtedly one of
the Scottish Charity Regulator’s own
the most helpful publications currently
policy memoranda and published
on the market for the charity law sector
guidance, Cross & Ford also highlight
in Scotland. It is a vital addition to
those areas which are still developing,
private client practitioners’ libraries
flagging up where new regulations have
and, as the Act continues to settle in
only just come into existence or are still
and develop, future editions will be just
awaited.
as keenly anticipated.
The reader’s understanding of the
Gavin McEwan, senior associate,
2005 Act is greatly enhanced by the
Turcan Connell; accredited specialist
authors’ references to the bill’s progress
in charity law
through the Scottish Parliament, with
October 07 theJournal / 41
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12:50 pm
Page 42
In-house Responses to change
The instinctive response of feeling insecure
when plunged into change can be managed,
argues Paul Gilbert, who offers a 10-point
plan to face the challenge
Out of my
depth?
I was having a coffee the other day with
an in-house lawyer new into her first
role. She was interesting and
thoughtful and her conversation was
engaging and full of optimism, but
then she made a remark that made me
pause for thought.
She said: “I am really uncomfortable
doing new things; I always feel that I am
so much out of my depth.”
As a familiar metaphor, “out of my
depth” is an easy to use and everyday
turn of phrase. But pause for a moment
to reflect on these words: taken literally
they carry a significant burden and are
laden with discomfort.
The phrase, for me, conjures an
image of flailing limbs in a hostile sea,
lungs bursting with pain and a
helpless surrender to a certain end.
These words “out of my depth”
therefore seem to indicate the sort of
deep-seated and personal discomfort
that would travel to the pit of one’s
stomach in an instant.
Such innocuous words, maybe, but
such horrible connotations: no wonder
the newly appointed in-house lawyer
was reluctant to try new things if it
made her feel out of her depth.
Same depth, new landscape?
The fear of change which she was
indicating, both at an organisational
level and for very many of us as
individuals, is a widespread and very
real phenomenon. To be good at
change, therefore, we need more than
to be able to articulate why change is
potentially a good thing: we also need
to plan to overcome this almost phobic
reflex response to the thought
of change.
In short, we need a different way of
thinking, a different metaphor.
How would we feel, for example, if
we were not really out of our depth at
all? What if we were absolutely at the
same depth we normally operate in?
Would it not appear a more
comfortable experience if we could be
convinced of this as a new reality?
I am convinced that for most changes
we make (or are forced to make), it is
not the depth that has changed, but the
fact that we are swimming in unfamiliar
waters where the landmarks on the
shoreline are different.
And if that is the case, we are not
going to drown; we will be perfectly
fine in fact and we will have all the
skills and the experience we need to
survive in our new surroundings and
maybe even to thrive.
Consider this thought (and a
different metaphor again): when you
drive your car to a new place, to
somewhere you have never been before,
you can still physically drive the car –
you have not forgotten how to steer or
Most likely you are swimming just
fine. The shoreline a little different
perhaps, but the swimmer in control
42 / theJournal October 07
how to change gear; but you may have
to concentrate a little more and you
may have to prepare the way a little
more thoroughly as well.
Managing the emotional response
The discomfort we feel by labelling how
we feel as “out of our depth” effectively
elevates change from being, in my
driving analogy, a need for a little more
concentration as we look for
somewhere to park, to a near death
experience in the freezing waters of the
North Atlantic. (And that is also now a
mixed metaphor!)
So how should we combat this fear
of change?
I would like to suggest a 10-point
comfort blanket. Ten points not to
falsely reassure, but to put into context
what most change is really about. Ten
points to help us manage our own
emotional response to change.
1. While all change can be described
in terms of negative outcomes like
more work, more disruption, unknown
consequences etc, it is also true that
most change can be described with
positive consequences as well. Change
teaches us to adapt, to see opportunity,
to develop skills etc. Change itself is a
potentially a very positive experience. As
Albert Einstein said: “There is nothing
that is a more certain sign of insanity
than to do the same thing over and over
again and expect the results to be
different.”
2. Change is also inevitable in any
event – it is a constant in our lives and
we cope every single day with any
amount of it. Work priorities move,
supermarkets run out of something we
42-44 In-house07-10-1a
3/10/07
12:50 pm
want, the garage is closed on the way
home, the TV schedulers move the
kickoff time of the football, etc. Change
is not a problem for any of us, but what
we are less good at is unfamiliar change.
3. Unfamiliar change takes us by
surprise and often causes three
responses – to flee, freeze or fight. All
three responses, however, are emotional
and obstructive and none of them help
us deal with either the change process
or the consequences of change. If they
become a pattern of behaviour we will
always struggle. Knowing this is the start
of dealing with it differently.
4. Change itself is rarely destructive.
The fact that we may feel somewhat
uncomfortable is often the necessary
prerequisite for personal development
and progress, while being comfortable
can be, conversely, indicative of a slow
decline into complacency and decay.
Think about it
5. That is not to say, however, that
Page 43
change in every instance is necessarily a
good thing. Change for its own sake
might well be disruptive, and change
must always be well planned, well
communicated and well managed.
Therefore we should not accept change
in an unthinking way and we must
preserve a reasoned opportunity to
push back.
6. Sometimes, for example, we also
make the mistake of evaluating the
benefits of change, but ignoring the
benefits of the status quo. When
evaluating the impact of change,
therefore, we must also evaluate the
impact of the status quo. By developing
our understanding of the reality of our
current circumstances we can better
inform the debate (for or against)
change, but without the emotional,
destructive response. Relevant
questions are:
Is the status quo rewarding,
challenging and fun?
Is the status quo a permanent stable
state, or is it too merely temporary?
Do our colleagues and friends look at
change in the same way as we do? If
there is no consensus about the viability
of the status quo, what are they likely to
want to change and when?
Can we exert some influence over the
status quo? If we can, is that influence
any more than the influence we can
exert over change? If we have influence,
change is more likely to have positive
outcomes.
Is it better to change positively and
with energy or to sit tight in the
equivalent of a brace crash position and
hope the moment will pass?
7. Change is rarely, if ever, done to us
to annoy or upset us; there is therefore
precious little to be gained by arguing
emotionally against change. Even if our
concerns are well intentioned, an
argument based on emotions will
appear Luddite (or worse) and
definitely not a good place to begin
negotiations. So we should argue facts,
argue logic and argue better alternatives.
Not all change is good, but bad change
occurs because we lose our perspective
and create distracting and pointless
arguments which are bound to fail.
8. When change is contemplated,
opportunity is created too. It’s like a
chemical reaction. If we seek out the
opportunity and judge the benefit of
the opportunity before we resist the
change, many possibilities are revealed.
9. Life (as the old cliché goes) is a
journey, but it should not always be a
Sunday afternoon ride down a
familiar lane, to the same old places.
While some days like this are good, no
one should want their whole life to be
like it. Let the journey be a mixture of
the old and the new, the fast and the
slow, the risk free and, occasionally,
the risky too.
10. Never again should we have the
automatic response that we will be “out
of our depth” with change, simply
because it is unfamiliar. Most likely you
are swimming just fine. The shoreline a
little different perhaps, but the
swimmer in control, comfortable and
maybe even enjoying the new views…
Oversimplifying?
Of course articles like this are bound to
simplify things too much and it is
always easier to say these things than to
actually do them. However, while
change is not easy and is only ever
relished by a very few, it should not be
so daunting. What we must always try
to do is to reflect on how we will make
change work for us.
The in-house lawyer with whom I
shared a coffee, like all of us, has the
capacity to change and to take
advantage of the opportunity that
change brings. Enjoy the swim.
Paul Gilbert is Chief Executive of LBC
Wise Counsel, the UK based specialist
management and skills training
consultancy for lawyers.
www.lbcwisecounsel.com
ILG goes to the fairs
The In-house Lawyers Group is
to take a stand at student law
fairs during the 2007-08
academic session as part of an
ongoing drive to raise
awareness of the excellent
career opportunities in-house.
In response to concerns over
recruitment and retention of
legal staff raised during visits to
group members earlier this year,
ILG has been working with
Collette Paterson, the Society’s
New Lawyers’ Coordinator, to
promote in-house traineeships
and provide information on
legal careers outwith private
practice.
Whereas historically
attending such events might
not be cost effective for
individual organisations which
offer relatively few traineeships,
the ILG can represent all areas
of in-house practice.
Janet Hood, ILG chairman
said: “Many students have no
idea that the opportunity for a
challenging and fulfilling legal
career can be had outside of
law firms.
“It’s an exciting new venture
for the group and we hope it
will go some way towards
informing law students of the
scope of opportunities available
in house, in addition to helping
organisations find the calibre of
graduates they want to recruit.”
October 07 theJournal / 43
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Page 44
In-house Privilege
In-house lawyers’ attempts to win recognition of
legal professional privilege in relation to their advice
have been rebuffed by the ECJ
Court bars
in-house privilege
9
.00am, 17 September
2007. As a crowd of
lawyers and media alike
poured into the European Court
of Justice to find out whether the
European Commission had won
its long battle against Microsoft
(which, incidentally, it had), a
smaller group of us gathered in a
courtroom along the corridor to
witness the handing down of an
equally important, but much less
publicised, judgment.
The decision in Akzo Nobel
Chemicals v Commission (Joined
cases T-125/03 and T-253/03)
was much awaited. It was an
opportunity for the Court of
Justice to revise the scope of
legal professional privilege
(“LPP”) under EU law. Since the
judgment in AM&S v
Commission (155/79) [1982] ECR
1616, the position has been that
advice given to a company by an
in-house lawyer is not privileged.
Only communications with an
external EEA-qualified lawyer, or
internal notes reporting the
content of communications with
such a lawyer (T-30/89 Hilti v
Commission [1990] ECR II-163,
order of 4 April 1990), have
been covered by LPP.
The Akzo raid
The background to the case was
an investigation (“dawn raid”)
carried out by the Commission
and the Office of Fair Trading in
February 2003, at the premises
of Akzo Nobel Chemicals and
Akcros Chemicals in Eccles,
Manchester. During the
investigation, in which the
Commission took copies of a
large number of documents,
Akzo advised that certain
44 / theJournal October 07
documents in a particular file
might be covered by LPP, and the
Commission could not therefore
have access to them.
A dispute arose as to whether
these documents were
privileged or not. The
documents included an internal
memorandum detailing
information collected within
Akzo with a view to obtaining
outside legal advice, with
handwritten notes referring to
contacts with one of Akzo’s
external lawyers, and a series of
emails between the general
manager and Akzo’s in-house
counsel. The debate as to
whether these documents were
privileged or not remained
unresolved, and Akzo
subsequently appealed to the
Court of First Instance (“CFI”)
the Commission’s decision to
take copies.
In case of dispute
Akzo’s appeal raised, essentially,
two questions. First, what
procedures should the
authorities follow when, during
an investigation, LPP is claimed in
respect of a document?
Secondly, and more importantly,
were the documents privileged?
In answering the first
question, the CFI gave guidance
as to what should be done
when privilege is claimed during
a Commission investigation. It
found that a company does not
need to reveal the contents of a
document if it gives the
Commission “relevant material”
to prove that the document is
privileged. It also found that a
“cursory look” by the
Commission at the general
layout of a document would
often allow it to decide whether
it was privileged or not;
however, if even a cursory look
would disclose confidential
information, the company
might refuse access. If the
Commission disagreed, a copy
of the document was to be put
in a sealed envelope until the
dispute was resolved by appeal
to the CFI.
In-house, not independent
On the scope of LPP under EU
law, the CFI rejected Akzo’s plea
that it should be extended to
cover in-house lawyer
communications. It did, however,
extend the scope of LPP in one
respect: it held that internal
documents drawn up exclusively
for the purpose of seeking legal
advice from a lawyer were
privileged, the burden resting on
the company to prove that this
was the purpose of the
documents. Applying this to the
copies of the internal
memorandum Akzo claimed it
had discussed with an external
lawyer, the CFI found that they
were not privileged, as it had not
been proved that the
memorandum had been drawn
up exclusively for this purpose.
Turning to the emails between
the general manager and Akzo’s
in-house counsel, Akzo argued
that its lawyer was a member of
the Netherlands Bar, and any
communication with a lawyer
belonging to a bar or law society
should surely be privileged as his
or her independence was
assured. It also sought to
convince the court that the
position under AM&S was
outdated and ripe for change.
The CFI rejected both arguments.
It held that a lawyer cannot have
the required degree of
independence if they are
employed by their client (unlike
in Scotland, in some EU member
states such as France, in-house
lawyers do not, indeed cannot,
belong to a law society); and also
found that many EU member
states still exclude in-house
communications from LPP.
The Akzo judgment is not only
a welcome clarification on the
scope of LPP under EU law
(whether one agrees with the
conclusion or not), but it also
raises important implications for
in-house lawyers throughout
Europe. Only time will tell if the
decision of the CFI will be
appealed to the Court of Justice,
and the interesting debate
started all over again.
Fiona Young is an associate in
Baker & McKenzie’s European and
Competition Law Practice in
Brussels.
Cases cited in this article can be
accessed at http://curia.europa.eu/
en/content/juris .
Last chance for annual meeting
A reminder that the In-House Lawyers’ Group AGM and Symposium is on Friday
2 November at The Hub, Edinburgh. See Journal, September, 50 for full details.
45 Placed ads
3/10/07
10:03
Page 45
October 07 theJournal / 45
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1:01 pm
Page 46
Property Leases
Is most of the leasing work of commercial property lawyers
redundant? Iain Macniven argues that it is time for them to
find more fertile ground for their drafting skills
Leases: the
war is over?
Many property lawyers spend a
large part of their working day
wasting their time and that of
their clients. They achieve this
by immersing themselves in
the industry that has grown up
over the years around
commercial leasing.
I am old enough to remember
Alfie Phillips, of Alexander Stone
& Co as it then was, recalling his
earlier years in the 1950s when
conveyancing, in the sense of
buying and selling commercial
property, was a very serious
business (albeit probably easier
than it is now), while the
requirement as part of that
process to agree a lease was a
mere trivial sideshow: the lease
was probably a page or two long
and was agreed very quickly.
Things changed, mainly from
the 1980s onwards, with the
introduction into Scotland of the
full repairing and insuring lease.
This was largely imported from
England, and the signs are still
there, in that there is little in a
modern Scottish FRI lease which
is not readily recognisable to an
English practitioner. There will
be a few fiddly Scottish bits, but
not many.
The industry was thus spawned,
46 / theJournal October 07
and clearly my firm and others
played a significant part in that.
The question now is whether the
game is largely played out.
In England and Wales, the new
Lease Code is designed to achieve
a significant degree of
harmonisation in commercial
leasing provisions, and there is
significant buy-in at a high level
to that concept. In particular, the
parties are being asked to take a
sensible and reasonable
approach to certain key matters,
and that general approach
appears to be finding broad
favour in the industry.
There are a
large number
of law firms
and clients out
there who
know what
a properly
balanced lease
should look like
The old shibboleth to the
effect that reasonable tenant
amendments could not be
accepted as the institutional
landlord would not accept them,
if ever it were true, looks
increasingly unsustainable these
days, with landlord clients taking
a more balanced approach to
lease terms. Often, as a
consequence, the role of the
property lawyer seems to be to
obstruct, rather than achieve,
progress.
Room for dispute?
If one analyses the modern
Scottish commercial lease, how
much of it is really worth
spending time negotiating?
Consider the following:
Acting reasonably
Some landlord-oriented leases
may omit these magic words in
the first draft. If revised in, they
are readily conceded, so what is
the point? Given the courts’
apparent desire to read a test of
reasonableness by implication
into other provisions in legal
documents, such as the
construction of the phrase “as to
which the purchaser shall be sole
judge”, is this debate worth it?
Compliance with statute
Can the obligation not be
expressed in two lines, rather
than 10 pages?
Alterations
There are standard revisals to a
standard alterations clause. We
all know what they are.
Alienation
The norm is clear. Assignation of
the whole should require
reasonable consent; assignation
of part should be prohibited;
subletting of the whole should
probably require reasonable
consent; and there may be issues
about partial subletting
depending on the nature of the
property. Granting rights of
occupancy to group companies
should go through on the nod.
Rent review
We have developed a standard set
of assumptions and disregards
which we all know. There may
need only be a few tweaks, if that,
to a typical rent review clause to
fit the particular circumstances.
There should be no debate about
the level of interest payable on
the balancing payment following
settlement of the review.
Use
There will typically be a specified
user, with reasonable consent
required to changes. The only
46-48 Property07-10-1a
3/10/07
issue is the scope of that
reasonable consent, e.g. within
use classes only or beyond that.
Repairs
There is standard FRI wording,
and there are standard exclusions
in relation to damage by insured
risks, subject to insurance
shortfall being made up by the
party at fault.
Insurance
The basic setup is well established.
The landlord insures at the cost of
the tenant; the landlord rebuilds;
there is rent cesser and a
termination provision; there is
generic/specific endorsement of
the tenants’ interest.
Irritancy
There is a standard clause. There
is a standard revisal.
Guarantee
Again, there is recognised
standard wording, and the only
1:01 pm
Page 47
issue is to make sure that the
obligations guaranteed are those
of the named tenant only.
Other standard clauses
Is there really anything worth
debating about clauses dealing
with payment of rates,
decoration, nuisance, title
conditions etc?
A mature market
All of this suggests to me that
property lawyers in Scotland
should be devoting their
energies to something other
than leasing wars.
I recognise that the concept of
standard lease terms was
promoted a number of years ago
and found little favour, partly
because of technical concerns
around issues such as rei interitus.
The market has matured since
then, however, and there are a
large number of law firms and
clients out there who know what
a properly balanced lease should
look like.
My argument is not necessarily
for a standard lease form per se,
but instead a recognition that the
vast bulk of provisions in firms’
precedent leases can themselves
be readily reduced to an agreed
position: there is little to be
gained for the client, therefore, in
not enshrining that position in
the precedent itself. Lawyers
instructed in new leases should
no longer look forward to
digging down into an entrenched
negotiation which will keep
them occupied for weeks, while
the landlord waits for his rent
and the tenant waits for his keys.
I accept that this rationale may
work more readily with single
occupancy leases. Multioccupancy leases of shopping
centres, for instance, bring their
own issues, although even there
the general regime in relation to
service charge and other
distinctive features is becoming
familiarly standardised these
days. The RICS has, of course,
being doing sterling work on the
whole issue of a Service Charge
Code. A Scottish version of that
document has also now been
launched.
March of commoditisation
We are even beginning to
standardise service charge
exclusions in relation to initial
development costs etc in multioccupancy leases. Some work
requires to be done on that yet,
though, given the propensity of
some of my brethren to seek to
exclude from service charge
matters which on no analysis
could ever be comprehended
within the service charge
provisions in the first place. I
have yet to see an exclusion in
relation to the cost of the centre
manager’s children’s school fees,
but no doubt that will come.
Property lawyers need to
recognise that, with land
registration, a marked shift in the
attitude of clients, general
consumer pressure, and the
sharing of knowledge via modern
technology, a large part of what
they have historically done is
becoming commoditised, and it
deserves to be commoditised.
Leasing lawyers need to give up
their dependency on this drug and
move on. Many property lawyers
are technically excellent lawyers
with commendable drafting skills.
They can deploy these skills in lots
of other areas, including projects
work and general commercial
contractual drafting – which
needn’t be left as the province of
their corporate colleagues.
If property lawyers don’t take
stock of this situation, they will
become largely extinct as a
breed. And they will deserve to
become so.
Iain Macniven is a partner in
Maclay Murray & Spens LLP.
He has specialised in commercial
property work for over 25 years and is
a member of the Property
Standardisation Group. The views
expressed in this article are personal
ones, which do not necessarily reflect
the views of colleagues in either
MM&S or the PSG.
Non-execs join
Registers board
Three new non-executive
directors have joined the board
of Registers of Scotland.
Ian Moffett, a partner in
Anderson Strathern and formerly
with Dundas & Wilson; Sheila
Terry, recently retired from the
post of head of planning and
transportation at Falkirk Council;
and Stephen Dingle, formerly a
partner with Ernst and Young LLP
and an executive director with N
M Rothschild and Sons Ltd,
attended their first board meeting
on 4 September following a day
and a half of introductory
meetings.
Welcoming the new directors,
appointed for a three year
period, Keeper of the Registers
Jim Meldrum said:
“In making these appointments
I believe we have brought in three
people who will add real value to
Above l-r: Bruce Beveridge (Deputy Keeper), Stephen Dingle, Jim Meldrum
(Keeper), Sheila Terry, Sheenagh Adams (managing director) and Ian Moffett
the board over the coming years.
A wealth of experience in the
financial sector, the law and local
authorities can only add to the
broad range of expertise of our
existing board members. I am
convinced that the new makeup of
our board will provide Registers
with excellent leadership and
guidance through a period of
major challenge and change. I look
forward to working with them.”
October 07 theJournal / 47
46-48 Property07-10-1a
3/10/07
1:01 pm
Page 48
Property ARTL
ARTL picks
up speed
Several dozen
transactions have
been successfully
completed
via automated
registration,
and the system
is gathering
momentum
Since the first live application
for registration of a dealing in the
Land Register was successfully
processed in ARTL at the end of
July (Journal, August, 54),
Registers of Scotland have
commenced the rollout of the
system for commercial use with a
small number of firms and
lending institutions. By
September more than 50
applications, involving standard
securities and discharges, had
been successfully processed and
the Agency expects that over 150
such applications will have been
handled by the end of October.
Although these applications
are being processed by the
automated system, each one is at
present also being monitored by
Agency staff to ensure that it is
completed satisfactorily, and
early indications are that the
system is performing as planned.
Once a sufficient number and
variety of applications has been
processed, we will undertake a
detailed assessment of this first
period of live, commercial use, in
liaison with the participating
firms and institutions and the
Society prior to signing up more
firms and institutions. This in
turn will lead to the full rollout
of the system across the country,
on a county by county basis.
So far the live operation of the
system has provided both the
Agency and the participating
firms and institutions with
valuable experience in ensuring
that the participants’ IT systems
meet the basic requirements of
ARTL and are appropriately
configured, and that their
security protection allows for the
necessary communication with
the Agency’s systems. This
should ensure that when the
wider sign-up of firms takes
place, these requirements
will not cause problems
in practice.
To date more than
500 firms have received
their ARTL licences.
The actual sign-up to
enable firms to use the
system will require a
member of the Agency’s
staff to visit the firm, and
preparations are now being
made for this significant
initiative. If your firm has not yet
applied for a licence but
anticipates wanting to use ARTL,
it is recommended that you
apply without delay. For the
straightforward procedure
involved, see the application
pack on the Agency’s website, at
http://www.ros.gov.uk/artl/
literature.html .
We will be in touch with firms
holding licences well before they
are due to be signed onto the
ARTL system, and will provide a
report of our assessment of the
early use of the system in a
forthcoming edition of the
Journal. We also anticipate
updating the ARTL literature on
our website over the coming
weeks. In addition ARTL will
feature as one of the main
agenda items at a series of
conveyancing conferences due to
be staged jointly with the Society
in six locations around Scotland
during November.
Bruce Beveridge, Deputy Keeper,
Registers of Scotland
Turnaround Times
(as at 22 September 2007)
Ministerial target
Latest year-to-date
turnaround time
To achieve recording and registration
turnaround times in 2007-2008:
48 / theJournal October 07
Averaging over the year as a whole no
more than 20 working days for sasine writs
13.86 working days
Averaging over the year as a whole no more
than 30 working days for dealings with whole
25.08 working days
49 W Green ad
3/10/07
12:47
Page 49
50-52 Sidelines07-10-1a
3/10/07
1:37 pm
Page 50
Sidelines Abby Solvitor
Abby Solvitor on the reality of what
holidays mean for the junior lawyer
Come fly
with me
The dutiful
note of work
has been unceremoniously
ignored by all,
and of course
you spot the
post-it from
seniority with
the dreaded
words “See me
about this upon
your return…”
plonked on
a file
I have a suspicion that when the
fantastically monikered Courtney
Taylor-Taylor of glam pop stars The
Dandy Warhols sang that “Every day
should be a holiday”, he clearly had
not given even a second’s thought to
the sorry anarchic mess this would
leave our law firms in.
The holiday season is nearly over,
and frankly most lawyers, especially of
the junior ilk, come out of it frazzled,
bothered and exhausted. This is not
due to the effects of one too many
margaritas on a heady night out in
Costa del Brits-abroad, nor the
aftermath of a family camping trip in a
drenched, midge-ridden campsite in
the Hebrides. Au contraire, this would
be the three weeks you have spent
carrying the can whilst every partner in
Scotland exits the country into
blinding continental sunshine, suitcase
in hand and passport at the ready. The
files they leave in your tremulous and
unsuspecting hands are ironically
piled as high and totter as
precariously as the Leaning Tower
of Pisa, where in all likelihood
they are headed off to. You
suddenly realise the closest
you will get to a holiday is
watching repeat episodes of
Eldorado on BBC 3. The
bosses’ summer of love is the
winter of your discontent,
mon ami.
Here you are, contending with
a multitude of angry clients, deals
going unexpectedly awry resulting
in not-so-hilarious consequences,
thinking on your feet and
suddenly elevated to seniority,
whilst he dons a sombrero
and hits Club Tropicana with
George Michael and Andrew
Ridgeley. On top of this, you will of
course have to use all powers of selfcontrol not to lamp the idiot who
will coo that all this is a “great
learning experience”. Quite.
If you are lucky enough to have
booked a few days of idyll, you may
not have banked for the hysteria and
military planning which leaving the
law firm entails. Cobwebbed files,
which have hitherto been happily
snoozing in your cabinet, suddenly
reappear to haunt you. You will have
to produce a detailed “Note of
Work”, a magnum opus covering all
eventualities and all manner of
hypothetical scenarios like The ATeam gone into overdrive – what
needs to be done, what to do if
something happens which has never
happened before, what not to do
under any circumstances. You work
like a demon until midnight for the
run-up to your grand departure.
Partners, on the other hand,
The whoops!
corner
apparently
favour a more
minimalist
approach and
generally consider
sufficient a
monosyllabic “Right,
am off, just deal with
everything, ciao.”
Whether you have booked
Hollywood or Hazelhead Caravan
Park, I’ll wager that the heartstopping “Will I have a job to come
back to?” makes you wonder
whether it’s all worth it.
Then the aftermath. You arrive back
to the office, straw donkey and
toblerone in hand, to an inbox of such
gargantuan proportions that your
computer should rightfully have
imploded and gone up in flames like
something out of Blake’s 7. The dutiful
Sheriff Kenneth Mitchell on the
occasional drawbacks of the conference
call-based pilot reparation court in
Glasgow: “It’s important that the clerk
transposes the telephone numbers
correctly. Sheriff Scott has, on occasions,
found himself speaking with the
proprietor of a kebab shop in
Byres Road.”
50-52 Sidelines07-10-1a
3/10/07
1:38 pm
Page 51
Sidelines Letter from somewhere else
Father figure
It seems right that Thomas Jefferson’s
house, Monticello, is on the top of a high
hill. The drafter of the Declaration of
Independence, and third President of the
United States, was a man of such intellect
and integrity as to deserve to live nearer to
Heaven than the rest of us.
To visit his home, preserved as it was in
Jefferson’s time, is a rare privilege for those
of us who think that the American Founding
Fathers were the greatest lawyers and some
of the finest human beings ever born.
The night before, I stayed in nearby
Charlottesville, where the University of
Virginia, which Jefferson founded, is based.
Making an early start for my visit, I parked at
the foot of Jefferson’s Mountain and rode the
little bus to the front door of Monticello. It
was a real bonus to be shown round by
Colonel Wayne Elliott, a retired military man
with an infectious knowledge and enthusiasm
for his subject. When the Colonel explained
about Jefferson’s tremendous facility with the
French language (he was ambassador to Paris
for years), the US-standard pretty girl in our
party piped up “Was Jefferson French then?”
At the other end of the American
intelligence scale, I was told later by another
Monticello guide that Colonel Elliott
possessed no fewer than four law degrees
and had been consulted recently by the
Pentagon on the use of torture by the US
military. His report is not published, I believe.
For media lawyers, Jefferson is a vitally
important figure. He drafted the freedom of
speech clause for the Virginian constitution
when an elected representative there. He
remained firmly committed to the necessity
of unrestricted freedom of thought, religion
and the dissemination of ideas and
opinions all his life.
The great debate on this took place in the
1760s and 1770s, involving some of the
finest legal and philosophical minds
ever to walk this earth. Sadly, this legal
recognition of free speech as a
of the
fundamental right, and a prerequisite
Jefferson is one
ts
for democratic government, is ignored
four US Presiden
nt
today in many parts of the world.
ou
M
on
d
cte
pi
de
Scots judges too have a centuries-old
e
th
e,
or
Rushm
tradition of interfering with and
ch
hi
w
of
e
ur
pt
scul
preventing the free exchange of ideas
s
ar
took 14 ye
and information. Not a cause for pride.
The beautiful Italian-style house is the
Letter from
somewhere
else…
Alistair
Bonnington
pays tribute
to Thomas
Jefferson,
whose spirit
lives on in
his home,
Monticello
note of work has been
unceremoniously ignored by all, and
of course you spot the post-it from
seniority with the dreaded words “See
me about this upon your return…”
plonked on a file. The suntan drains
away to be replaced by a distinct
queasy pallor. The out-of-office, which
was meant to pre-empt all such
horrors, is really just a red rag to a bull
to everyone who is not en vacances and
who takes a bitter delight in emailing
in abundance, marking them as urgent
for extra effect.
And so, the old season of mists and
mellow fruitfulness is upon us once
more and I for one am happy. The
equilibrium is restored. The holidays
used to be such a happy time, all
Walls tricolour ice creams with the
folks, and later backpacks and
exchange trips to France. Now the
whole fraught affair would make even
the most sun-starved lawyers hang up
their sandshoes and agree with the
voraciously well-read Mr Dewar that
travelling only narrows the mind.
And leaves your work in a mess.
However, without a doubt, there will
be at least one blurred photo of you
and your mates in the blinding sun of
a foreign land propped up on your
desk, which will make you realise,
with our very own Franz Ferdinand,
that it’s always better on holiday. And,
until I land the “Letter from
somewhere else” slot, I am already
planning the next one. Over to you,
Mr Bonnington.
fyi
Monticello, the
home of Thomas
Jefferson
centre of a working estate – Jefferson like
most Virginian gentlemen farmers grew
tobacco and owned slaves to tend his crops.
Although active in public life, he took a close
interest in the running of the estate – as his
handwritten farm books attest. A walk round
this lovely bit of land is well worthwhile. You
should finish up at Jefferson’s grave and read
the memorial stone.
Jefferson was dogged by tragedy in his
personal life. His wife died in childbirth aged
34. When he fell in love with a second lady
in France, he could not persuade her to leave
her husband (who was homosexual; it was a
marriage for form’s sake only). One of his
precious daughters predeceased him.
But he soldiered on through life, true to
himself, his principles and his beloved
country. Jefferson had great faith in the
human spirit, perhaps based on the conduct
of his fellow revolutionaries, who lived
through “the time to try men’s souls” by
selflessly assisting and encouraging each
other in their common cause. As one of the
signatories of the Declaration of
Independence remarked, they could well
have been signing their own death warrants.
In his last years, Jefferson had a vigorous
correspondence with John Adams, the
Bostonian second President of the USA and
his old fellow Congressional emissary to
Holland (for vital loans to the US Treasury)
and France. This fascinating exchange can be
read today, as all the letters have been
preserved – Jefferson invented a mechanical
system whereby as he wrote his letter,
another pen followed his hand to inscribe his
writings on a second sheet. The photocopier
salesman of 1795 would have been shown
the door at Monticello! It is in these letters,
which range over matters political, legal,
religious and philosophical, that one finds
one of Jefferson’s most remembered quotes,
“I cannot live without books.” This from the
man who donated his library to the
American people and so founded what
would become the Library of Congress.
(Don’t miss it when in Washington – the
building is stunning.)
Jefferson and Adams died within a few
hours of each other, 50 years to the day from
the signing of the Declaration. Adams’s final
words were “Jefferson lives”. For lawyers who
love liberty and democracy, he still does.
Washington, Jefferson,
Roosevelt and Lincoln
Abby Solvitor is the pen name
of a practising solicitor
October 07 theJournal / 51
50-52 Sidelines07-10-1a
3/10/07
1:38 pm
Page 52
Sidelines Hearsay
Read on if you dare… Louise Farquhar has some ideas for those
who like to take Hallowe’en seriously
Six of the best...
Scary places
The witching hour is upon us – this is
the month of Hallowe’en. Disbelievers
may scoff and scorn those who seek
the ghosts and ghouls of our past, but
even the most hardened sceptics can’t
deny the spine-chilling creepiness of
some of Scotland’s most haunted
sites… just watch out!
Here are my top six ideas:
Greyfriars Kirkyard, Edinburgh
One dark night in the depths of Greyfriars
Kirkyard, the coffin of Sir George
Mackenzie, persecutor of the Covenanters,
was broken open by accident as a
homeless person looked for somewhere to
sleep. Since that fateful event occurred in
1999 the ghost of “Bluidy Mackenzie” has
tormented visitors, leaving many with
bleeding scratches, bruises and broken
fingers. Experts have examined over 450
documented attacks and many consider
the Mackenzie Poltergeist to be the best
recorded paranormal phenomenon in the
world.
0131 225 9044
www.blackhart.uk.com
Glamis Castle, Angus
The childhood home of the late Queen
Mother is rumoured to have hundreds of
ghosts drifting around the hallways. Many
are pure green entities called “green
ladies”, but the most famous banshee is the
beautiful Janet Douglas, wife of the sixth
Lord Glamis. She was accused of being a
witch, tortured and then burned alive by
followers of King James V. Now her spirit
can be found kneeling and praying in the
chapel before sitting in the back pew.
01307 840393
www.glamis-castle.co.uk
Sandwood Bay, Kinlochbervie
This desolate sandy beach, on the rugged
Atlantic coast, has a rich history of very
Jedburgh
Castle Jail
creepy episodes. Before the Cape Wrath
lighthouse was built in 1828 there were
many shipwrecks here, all of which lie
buried under the sand along with the
bodies that perished on those stormy
nights. In particular, a bearded sailor,
clad in sea boots, a sailor’s cap and a
brass buttoned tunic has been seen by
crofters, fishermen and walkers – he
likes to rattle the windows of the old
bothy when darkness falls, petrifying
those sheltering inside…
www.undiscoveredscotland.co.uk
Mary King’s Close, Edinburgh
This notoriously haunted spot lies below
the City Chambers and was once home to
several families who lived in the tightly
packed tenement buildings. When the
plague took a deathly grip on the
inhabitants the close was sealed off from
the rest of the city and the ill were
abandoned and left to die. A child named
Annie is the most famous ghostly resident
and has scared the living daylights out of
many a doubtful visitor. Take a candlelight
tour of the close, if you dare!
08702 430160
www.realmarykingsclose.com
A75, Dumfries and Galloway
The stretch of A75 between Gretna and
Annan is claimed to be the most haunted
road in Scotland. For decades drivers have
seen a man wearing a hessian sack on his
head who mysteriously vanishes as they
get closer. Further sightings include the
chilling figure of an old man with no eyes
who always leans against the same wall.
This route is an ancient trail used by
travellers in the days of bandits and other
Mary King’s
Close
nasty characters. This might be the perfect
spot for some novice ghostbusting – with
the comfort, and safety, of your car.
www.visitdumfriesandgalloway.co.uk
(general guide to the area)
Jedburgh Castle Jail, Jedburgh
This former Victorian jail has been the
subject of many reported paranormal
occurrences; one of the most daunting
apparitions is a lone piper who stands on
the battlements. In 2005 a professional
investigation team recorded extreme
poltergeist activity at the jail as well as
noting many strange and unexplained
lights. The really brave can join a psychic
medium on a walk around the building for
a very menacing evening.
01236 615300
www.ghostevents.co.uk
For further ideas see:
Culzean Castle, Ayrshire
0844 493 2100
www.culzeanexperience.org
Mercat Walking Tours
0131 225 5445
www.mercattours.com
From the Journal archives
50 years ago
The Journal for October 1957 was
largely devoted to the visit to
Scotland of the American Bar
Association, including a day trip to
Loch Lomond: “Somewhere near
Balloch on the return journey an
uninhibited wolf whistle
emanated from the back of the
52 / theJournal October 07
bus followed by a female voice
saying, ‘Behave yourself Elmer!’.
This was due to the sight of a
young lady in a bikini disporting
herself in the waters of the loch.
As Miss S. remarked to me,
American lawyers when you get to
know them are very much the
same as those in Scotland”.
25 years ago
From “The Sunday Times and
Harman cases”, October 1982:
“After the judgment of the
European Court of Human Rights
on corporal punishment in
Scottish schools, the European
Convention on Human Rights
has been the subject of renewed
interest... [We have] marked the
end of the period when the Court
moved cautiously, lest it forfeit
the confidence of the states and
thus endanger the future of the
Convention.”