Thanks to you for your support and encouragement in my new business. I look forward to working with you on various projects.

I am very grateful to those who supplied testimonials. My particular thanks go to David Gilmour who both designed the website and also carried out the translations into Spanish.

My website is now complete and this is the first Newsletter. I will try to cover matters which are of interest to lawyers and non-lawyers alike. If there is any area which you particularly wish me to cover then please let me know.

As with all legal matters, it is essential to take appropriate advice before taking action and you should never rely on a general statement of the law.

This month’s Newsletter includes Court decisions dealing with the difficult area of judicial impartiality, developments in the Scottish Parliament regarding the amendment of the law relating to pleural plaques, some general business news and the Joint Discussion Document from the two UK Law Commissions on Consumer Remedies for Faulty Goods.

Recent Court decisions

The House of Lords issued a number of judgments in October. One of them is of particular interest.

Helow [AP] v Secretary of State for the Home Department 22nd October 2008

This case was concerned with an appeal against a decision of the Inner House of the Court of Session [the equivalent of the English Court of Appeal]. The UK Government and the Scottish Government also took part. The basis of the case was an allegation that Lady Cosgrove, who refused the Appellant’s application for a review of a decision by the Immigration Appeal Tribunal not to allow her to appeal to the Court of Session, should not have heard the case at all. The basis of the appeal was that Lady Cosgrove was a member of the International Association of Jewish Lawyers which published a magazine entitled ‘Justice’. The Appellant was Palestinian by birth. She claimed the right to asylum in the UK based on her fear of the Israeli Government as a consequence of her political activities. She had failed in her arguments at earlier stages. She made no criticisms of the reasons given by Lady Cosgrove for dismissing her application. The argument was that Lady Cosgrove’s decision was vitiated on account of bias and want of objective impartiality. The Appellant claimed, without producing any evidence of bias or impartiality, that Lady Cosgrove’s membership of that organisation along with the terms of articles written by others in their magazine gave the appearance of Lady Cosgrove being a supporter of the Israeli government who could not act impartially in considering the case. The appeal was dismissed unanimously. The two full-time Scottish Law Lords and another appointed to hear the case, along with two other Law Lords, delivered speeches. One of them, Lord Rodger, described the case as a challenge to the integrity of the Scottish legal system. The House reaffirmed the principle that the appropriate test is that of a fair-minded and impartial observer. Applying that test there was no reason to assume that Lady Cosgrove had acted otherwise than appropriately in hearing the original application by the Appellant.

http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/helow-1.htm

The area of impartiality was also explored by the Employment Appeals Tribunal this month. Lady Paton, who is the Scottish nominated Judge for the EAT, delivered the judgement in the case of the City and County of Swansea v Honey.  A lay member of the original Tribunal, which had awarded substantial damages to the dismissed employee, was a Trade Union official who was in an active dispute with the employers in relation to another group of workers. The employers had asked the Tribunal to review its decision in light of the apparent lack of impartiality prior to the issue of its decision. The Tribunal made its award and subsequently refused the application for review. The EAT allowed the appeal against the refusal of the review. Lady Paton observed that it was surprising the lay member had not originally declined to hear the case given his outspoken comments in the press about the employers. This was a clear case of bias. The 3 earlier decisions of the Tribunal were set aside and the case was sent to a new Tribunal to start afresh.

www.employmentappeals.gov.uk/Public/Upload/08_003007_054908_0029rjfhphapLBRN.doc

Pleural plaques

The House of Lords Judgment in Johnston v NEI International Combustion Ltd published on Wednesday, October 17, 2007 ruled that symptom less pleural plaques do not give rise to a cause of action under the law of damages. Prior to this Judgment, pleural plaques had been regarded as actionable for over 20 years. Concerns were expressed in and outside the Scottish Parliament about the Judgment. As a consequence a Bill was introduced into the Scottish Parliament [which has legislative competence in this area] to restore the law in Scotland to what it had been thought to be before the House of Lords decision.
The Justice Committee of the Scottish Parliament reported on 13th October, 2008, that it would support the Bill but expressed concern about the financial implications. Its full report and the procedure to come can be found at:

http://www.scottish.parliament.uk/nmCentre/news/news-08/pa08-036.htm

The webpage for the Committee, where you are able to access a copy of the Bill and the supporting documents along with ministerial correspondence, is:

http://www.scottish.parliament.uk/s3/committees/justice/inquiries/damages/index.htm

Some areas of general business interest

Limited Companies
Some important provisions of the Companies Act 2006 were brought into force on 1 October 2008. These include: 

Limited Liability Partnerships
From 1 October 2008, Limited Liability Partnerships have new legislation dealing with the content of LLP accounts, and the rights and duties of LLP auditors that are already in force for companies.

The UK National Minimum Wage
From 1 October 2008 the hourly national minimum wage rates increased from £5.52 to £5.73 for workers aged 22 or over, from £4.60 to £4.77 for workers aged between 18 and 21 and from £3.40 to £3.53 for workers under 18 years

Employers’ Liability Compulsory Insurance

From 1 October 2008 employers are no longer required to keep copies of out-of-date employers’ liability compulsory insurance certificates for the 40 year period that was previously required. However, employers are strongly advised to keep details of their policies as an employee's claim may not occur for many years after the cause of the illness. 

Employers are required to display a copy of their certificate of insurance where employees can easily read it. From 1 October 2008 such certificates can be displayed electronically so long as the employees covered by the insurance have reasonable access to them in that form. If employers choose to use electronic rather than paper display, they must make sure that all employees know how and where to find the certificate.

There is guidance from the Health and Safety Executive at:

http://www.hse.gov.uk/pubns/hse40.pdf

New Maternity and Adoption Rights

New maternity and adoption rights came into force on 5 October which mean that employees whose expected week of childbirth, or whose expected week of placement with a child, is on or after 5 October 2008 are entitled to the same non-pay contractual benefits throughout both ordinary and additional leave.

For the full 52 weeks' leave, employees continue to accrue their statutory annual leave entitlement (or contractual leave entitlement if greater) and to benefit from other entitlements such as company cars and mobile phones, gym memberships, employer-provided health checks and insurance cover provided under company insurance policies.

Agency workers

From 27 October 2008 agency workers with contracts of less than three months are entitled to statutory sick pay.

Consumer Remedies for Faulty Goods

The Scottish Law Commission and The Law Commission have published a joint Discussion Paper on reform of the law. Comments are invited before 2nd February, 2009. Although this is a Discussion Paper it does give a useful summary of the law in both jurisdictions.

http://www.scotlawcom.gov.uk/downloads/dps/dp139.pd

'INDUSTRIAL DISEASE'

EMPLOYERS' LIABILITY POLICY ‘TRIGGER’ LITIGATION

• Durham -v- BAI (Run Off) Limited (In Scheme of Arrangement) (‘Lead Case 1’)
• Fleming & Eddleston -v- Independent Insurance Company Limited (In Provisional Liquidation) (‘Lead Case 2’)
• Edwards -v- Excess Insurance Company Limited (‘Lead Case 3’)
• Thomas Bates & Son Limited -v- BAI (Run Off) Limited (In Scheme of Arrangement) (‘Lead Case 4’)
• Akzo Nobel UK Limited & Amec PLC -v- Excess Insurance Company Limited
• (‘Lead Case 5’)
• Municipal Mutual Insurance Limited -v- Zurich Insurance Company and Others
• (‘Lead Case 6’)

In this long-awaited decision, which is of significance to insurers and reinsurers, Mr. Justice Burton decided today in the English High Court:

i) The Stewart Team submitted, with reference to the wording of s1(1) of ELCIA to which I have referred in paragraph 235 above, that the use of the words can be ascribed to a draftsman's error, or to inapt usage, which is to be explained by the fact that the 1969 Act was introduced as a Private Members' Bill, and so cannot possibly affect the construction of policy wordings first drafted many years earlier. They submit that ‘the conclusion that the Parliamentary draftsman used the word ‘contracted’ when he meant ‘caused’ is compelled solely by the fact that any other conclusion would be absurd’. As to the alleged error, they point to the remarks of Lord Guthrie in Brown (referred to in paragraph 143 above) about a mistake in the pleadings. As can be seen from the relevant passage at pp68-69 in Brown, there was an apparent concession in the defence that ‘the pursuer's said pneumoconiosis was contracted whilst the pursuer was working in the employment of the defenders in or before 1949’, by which concession the pursuer was held entitled not to be bound, in the circumstances. Lord Guthrie however adds ‘that, when the defence is considered as a whole, it appears that the word ‘contracted’ was mistakenly used for ‘caused’, and that parties seem to have proceeded on the understanding that ‘caused’ was intended’. I am entirely unpersuaded that what is set out in the statute was indeed a mistake: it is both consistent with the passage in Hansard, and in any event with what I am satisfied is the proper construction in its context of the policies in issue in this case. In any event, the very statement by Lord Guthrie only emphasises the interchangeability of the words and the interrelationship of the concepts.
So far as concerns the suggestion that ELCIA cannot change the meaning already established in policies (although the BAI and Independent policies, which I am asked to construe in this action, both, as it happens, post-date ELCIA), I have already referred to this question in paragraph 229 above. I am entirely satisfied that ELCIA simply recognises, and to that extent enshrines, and illustrates, the previously accepted meaning and formulation.
ii) Contract disease, or disease contracted, is not a constant feature – it appears in the MMI third wording and in BAI's first and second wordings, whereas the Independent wording and the MMI second wording use sustain disease. It is common ground that there is no legal definition of the word contracted. Scrutton LJ, as appears in paragraph 215(iii) above, in Smith at page 70 construed the word broadly, but so as to conclude that it was not limited to initial contracting (‘I do not myself read ‘contracted’ as ‘first contracted’), but could also apply to a subsequent period in which the employee was influenced by the disease or the disease increased. The medical experts agree that there is also no medical definition. I have already mentioned (in subparagraph (i) above) my lack of surprise as to the 'mistake' in the pleadings referred to by Lord Guthrie in Brown, as evidencing the apparently easy interchangeability between caused and contracted. It is of course also apparent from s1(1) of ELCIA, as I addressed in paragraph 235 above, where ‘injury or disease sustained’ is plainly intended to have the same meaning as ‘injury or disease suffered or contracted’: and this is even more aptly exemplified by what I have just set out, namely that amongst the very policies in issue in this case the words sustain disease and contract disease are both found, and plainly have the same meaning. I have no difficulty in concluding that, once I have construed these policies as applying on a causation/exposure basis, the word contracted – inflicted – is wide enough also to mean be caused.
iii) Mr Edelman points to Excess's particular wording (which also of course appears in the first MMI wording): ‘shall sustain personal injury by accident or disease’. Mr Edelman submitted, when attacking the case that there was injury or disease present at the date of inhalation, that mesothelioma would not qualify as personal injury by accident as would have been understood by the WCA cases – see Williams and Roberts referred to in paragraph 34(iii) above – although it could still be personal injury by disease, now that the limitation to scheduled diseases has long gone. Once however I have construed the word sustained to mean be caused, then this issue does not arise: plainly the employee has suffered something – be it injury or disease – which is conceded to fall within the policy if sustained during the policy period. If an employee (or ex-employee) develops a mesothelioma from having inhaled asbestos fibres during employment, asbestos fibres have caused him personal injury and disease, or personal injury by accident (the inhalation) or personal injury by disease (the tumour).
The employee will therefore be covered under the three Excess wordings and the MMI first wording, because such a person is caused [sustains] personal injury by accident or disease arising out of and in the course of his employment, during the policy period.
iv) The Defendants have drawn attention to the different syntax used in the various policies – sustain/contract (present tense) and sustained/ contracted (past participle), but I see no difficulty or need for distinction. As to Excess's wordings and MMI's first wording, I refer to subparagraph (iii) above.
As for the other wordings, a person with mesothelioma resulting from inhalation of asbestos fibres during employment will be caused [sustain] [bodily] injury or disease (Independent/MMI second wording), has a claim for injury caused [sustained] or disease caused [contracted] (the two BAI wordings) or will have an injury or disease caused [sustained or contracted] (MMI third wording).
v) I am not persuaded that there is any problem if, on occasion, EL and PL insurance are both covered in a combined policy, and the same or similar wordings are used, and yet must fall, in the light of the factual matrix and the different history and nature of the two kinds of insurance, to be construed differently. It may well be an anomaly if there is some leakage at a swimming pool and there is a different basis for the liability of the employing local authority to, on the one hand, an employee, and, on the other, a swimmer or an independent contractor. However that would arise in any event in most cases, given that almost all EL policies are expressly written on a caused basis, and almost all PL policies are on an occurring basis. My judgment is simply collecting the sustained wordings into the caused, rather than the occurring, pot.
vi) It is pointed out by the Defendants that the post-1948 Tariff wording uses the words ‘if any person under a contract of service or apprenticeship with the insured shall sustain bodily injury or disease caused during the period of insurance ...’ It is submitted that this shows that sustain and caused must mean something different. That is one possibility. The other is that they mean the same thing. It is noteworthy that there are six EL wordings issued by various other insurers in the papers where the wording ‘injury sustained … and … occurring’ are used, in which phrase such words are again either cumulative or duplicative: they too either mean the same thing or something different. I conclude, if I were to need, in the light of my conclusions, to construe the post-1948 Tariff wording, that, particularly in the light of the change of law, the revival of the law of tort in this area, in 1948, the word caused was inserted for, and should be treated as merely providing, clarification of what would in any event be the interpretation of the clause without it. I agree with Dr Eaglestone that the words have the same meaning and effect.
vii) Reference is made by the Defendants to a BAI policy issued to George Wimpey in 1977 in which the wording ‘injury sustained or disease contracted by’ any person has been altered to ‘injury illness or disease to’ any person, which is again entirely consistent with a broker's clarification of the meaning, rather than any alteration to it.

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There was an earlier press report at the time the case started in June of this year according to which at least one of the insurers had stated that it would appeal in the event of it losing its case. Time will tell.
Union Press release
http://www.prnewswire.co.uk/cgi/news/release?id=243271

Decision of Mr. Justice Burton 21st November, 2008
http://www.bailii.org/ew/cases/EWHC/QB/2008/2692.html

BRIAN SCOULLAR LEGAL AND BUSINESS CONSULTANCY

Email: info@brianscoullar.com
Website: www.brianscoullar.com

UK Telephone: 0844 598 3871 (4p/min from UK)
Spanish Mobile: (+34) 648 636 566

NEWSLETTER NO 3
21st December 2008

Introduction

I have a UK non-geographic number through which UK clients are able to contact me at a reduced rate.

May I wish a happy Christmas and a good New Year to all my readers.

 

Current cases in the UK Courts

Appeal Court, High Court of Justiciary

On the twentieth anniversary of the Lockerbie bombing the criminal prosecution continues through an appeal stage amidst complaints about the slowness of the Scottish legal system and political criticism of the whole case.

Abdel Baset Megrahi v Her Majesty’s Advocate

The Libyan national who was convicted in 2001 of  the murder of people on the Pan Am jet which crashed on the Scottish town of Lockerbie and some on the ground [ in total 270] in 1988 has lost his application for interim liberation by reason of health grounds.  He was sentenced to life imprisonment with a punishment part of 27 years. He would not be eligible for parole until the expiry of that period. In 2002 his appeal was refused. The Scottish Criminal Cases Review Commission [SCCR, see below) referred his case to the Appeal Court in 2007. This complex case has been journeying through the Appeal Court since then and no date for a hearing has yet been fixed. Some legal commentators and politicians along with parents of people who died maintain that Megrahi is innocent and should be released now on compassionate grounds as he has prostate cancer. The Appeal Court has refused the application for the time being though it is open to him to make a further application. The father of one of the victims has vowed to carry on the appeal if Megrahi dies before it is completed.

http://www.scotcourts.gov.uk/opinions/2008HCJAC68.html

http://www.theherald.co.uk/news/news/
display.var.2468227.0.Swire_I_will_carry_on_appeal_if_Megrahi_dies_in_jail.php

 

A Turtle Offshore SA Assuranceforeningen Gard-Gjensidig and Superior Trading Inc.

A tug ran out of fuel. There was consideration of TOWCON and in particular Part II Clause 18. The judge decided that the tug was not in a seaworthy condition.

http://www.bailii.org/ew/cases/EWHC/Admlty/2008/3034.html

The European Court of Human Rights

S and Marper v The United Kingdom

One appellant had been acquitted and in the case of the other proceedings were discontinued. They both asked the police to destroy their fingerprints and DNA samples which had been taken. The police refused in compliance with English law. The ECHR allowed the appeals, noting that Scots law had been made compliant with the Convention.

http://cmiskp.echr.coe.int/tkp197/
view.asp?action=html&documentId=843941&portal=hbkm&source=
externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

 

The Court of Justice of the European Community

The case of Leymann and Pustovarov

This case shows the need for care in proceedings under the European Arrest Warant

http://curia.europa.eu/en/actu/communiques/cp08/aff/cp080083en.pdf

Scotland’s devolved Government takes greater responsibility for the sea

Scotland will take greater control of its territorial waters which will  stretch 200 nautical miles out to sea

http://www.scotland.gov.uk/News/Releases/2008/11/27105536

 

The ICL Inquiry

On the 11th of May 2004 there was an explosion at a plastics factory operated by ICL Plastics Ltd and ICL Tech Ltd at Grovepark Mills in Maryhill, Glasgow. As a result 9 people died and 33 were injured.
This is a joint public inquiry under the Inquiries Act 2005 and was announced by the then Secretary of State for Work and Pensions, Peter Hain MP and the Lord Advocate Elish Angiolini, QC.
The terms of reference are

The Inquiry was chaired by Lord Gill, the Lord Justice Clerk, who is Scotland’s second senior Judge. Evidence was heard earlier this year and the Inquiry concluded on 20th November with closing submissions from the parties. Lord Gill will now consider the evidence and submissions after which he will write his report.
The Inquiry website is: http://www.theiclinquiry.org/
Pleural plaques legislation in Scotland

There is nothing new to report on this topic. Newsletter 2 which had a restricted circulation dealt with a decision of the English High Court on the interpretation of insurance policies. It is available on my website

General news

The Scottish Criminal Cases Review Commission
The Scottish Criminal Cases Review Commission is a public body which was established by an Act of Parliament in April 1999.  The Commission is funded by the Scottish Government Criminal Justice Directorate and is accountable to the Scottish Parliament for those public funds.
 Its review of cases is completely independent of Parliament, the Scottish Government, the Crown, the Justiciary and the Defence.  All cases accepted by it are subjected to a robust and thoroughly impartial review before a decision on whether or not to refer to the High Court is taken.
If a person has been convicted of a crime in a Scottish court and believes that a miscarriage of justice may have occurred in respect of that conviction or in relation to the sentence imposed then the Commission may be able to assist in reviewing the case. It usually requires that the person has exhausted the normal appeals process before applying to the Commission.
One of its more famous referrals is that of Abdel Megrahi [see above].
http://www.sccrc.org.uk/home.aspx

Legal Aid in Scotland

Insurers should keep in mind that legal aid is still available in Scotland to bring claims for personal injury and the Scottish Government has taken steps to extend the financial limits for the scheme

http://www.scotland.gov.uk/News/Releases/2008/11/07110142

 

 Codified Trade Mark Directive

There is a new Directive to codify trade mark law

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:299:0025:0033:EN:PDF

 

Arbitration [Scotland] Bill

The Scottish Parliament is considering a new Bill for arbitration in Scotland

http://www.scotland.gov.uk/Publications/2008/10/28100330/0

 

The Scottish Legal Complaints Commission

This body has recently been established to consider complaints against those providing legal services in Scotland

http://www.scottishlegalcomplaints.com/home.aspx

 

Consultation on Fatal Accident Inquiries
 
There is a public consultation on the scope of this type of Inquiry which while similar in some regards to an English Coroner’s Inquest may have more wide-reaching investigation and consequences

http://www.scotland.gov.uk/News/Releases/2008/11/20105336

 

Road Traffic

The UK government has plans for new penalties

http://nds.coi.gov.uk/Content/Detail.asp?ReleaseID=384841&NewsAreaID=2

Employment

The UK government starts a consultation exercise on the distribution of tips and service charges to employees

http://nds.coi.gov.uk/Content/Detail.asp?ReleaseID=384647&NewsAreaID=2

 
Scottish Police Complaints Commissioner

This little known public official in Scotland has recently produced a critical report about the country’s second largest police force

http://www.pcc-scotland.org/home.aspx

Scottish Law Commission Discussion Paper on Unincorporated Associations such as not-for-profit clubs, charities and voluntary associations

The Commission is proposing changes to the law which are designed to bring the alw up to date

http://www.scotlawcom.gov.uk/downloads/dps/dp140.pdf

Home Reports in Scotland

This new type of report is now required on a home sale

http://www.scotland.gov.uk/Topics/Built-Environment/Housing/BuyingSelling/Home-Report

The Accountant in Bankruptcy

The Accountant supervises sequestrations [bankruptcies] in Scotland. The website has a number of useful styles and helpful information

http://www.aib.gov.uk/

European Judicial Network

This somewhat obscure website provides helpful information about various topics of the legal systems throughout the EU.

http://ec.europa.eu/civiljustice/legal_order/legal_order_uni_en.htm

Company Names Tribunal

The Tribunal has published its first decision.

http://www.ipo.gov.uk/o31808.pdf

Intellectual Property Office

This website provides helpful information and search facilities.

http://www.ipo.gov.uk/

Working Time Directive

The EU Parliament has voted to end the UK’s opt-out from some parts of the Directive

http://www.europarl.europa.eu/news/expert/infopress_page/048-44550-350-12-51-908-20081215IPR44549-15-12-2008-2008-true/default_en.htm

The European Commission

The Commission proposes legislation to extend passenger rights to bus and ship transport.

http://ec.europa.eu/news/transport/081205_1_en.htm


Spanish lawyers’ fees
In a decision which will have far reaching implications in a country which still uses a Table of Fees recommended by the local Bar Association a Division of the Supreme Court has ruled that lawyers may contract freely to receive fees which are a percentage of the outcome of the litigation notwithstanding the Code of Professional Ethics.

Index

 

All are available on my website www.brianscoullar.com © Brian Scoullar 2008

BRIAN SCOULLAR LEGAL AND BUSINESS CONSULTANCY

Email: info@brianscoullar.com
Website: www.brianscoullar.com

UK Telephone: 0844 598 3871 (4p/min from UK)
UK Mobile: +44 (0)7759 283 687
Spanish Mobile: (+34) 648 636 566

NEWSLETTER NO 4
28th January, 2009

Introduction

The Christmas and New Year holidays seem a world away. The legal reporting world has been quiet but the tempo is accelerating. Now that Burns’ Day has passed the days are lengthening and hopefully the recession in both the UK and Spain has reached its nadir.

 

Current cases in the UK Courts

 

Court of Session, Outer House, Scotland                     

Roseleen Kennedy v The Lord Advocate and Scottish Ministers and Jean Black v The Lord Advocate and Scottish Ministers

This case shows the steps which relatives had to take in order to secure inquiries which were in compliance with their legal rights

http://www.scotcourts.gov.uk/opinions/2009CSOH01.html

Accountant in Bankruptcy v George Young

A challenge to the Accountant’s powers and also a reminder about procedure in relation to a Joint Minute

http://www.scotcourts.gov.uk/opinions/2009CSIH2.html

Barber v City Plumbing Supplies Holdings and Anr

A case dealing with an application to recall sequestration which is a reminder of the appropriate procedure

http://www.scotcourts.gov.uk/opinions/2009CSOH5.html

Guilbert v Allianz Insurance PLC

An action for damages following death. The judge held that there was no “rule of thumb” in Scots law tha
t in relation to a claim for loss of support the court should apply a deduction of 25% where there are no children. He decided on a greater deduction.

http://www.scotcourts.gov.uk/opinions/2009CSOH10.html

Sheriff Court

Aviemore Highland Resorts Ltd v Cairngorms National Parks Authority

A case brought under s 14 of the Land Reform [Scotland] Act 2003 in relation to the removal of a fence.

http://www.scotcourts.gov.uk/opinions/B94_08.html

Co-operative Group Ltd v Aberdeen City Licensing Board

An appeal to the Sheriff Principal against the refusal of a premises licence. He made observations on the correct preparation of a stated case and refused sanction for the employment of junior counsel.

http://www.scotcourts.gov.uk/opinions/B526_08.html

 

Employment Appeal Tribunal

AMICUS & Anr v UCATT & Ors
A new
The EAT has ruled in Scotland that transferee employers were not obliged to consult with transferred employees post TUPE. An application to amend documentation was refused. The judgment is read only so I have attached a copy to the accompanying email.

 

Court of Appeal, Civil Division

Kennedy [R] on the application of v Health and Safety Executive

An action for judicial review of the issue of a permit by the HSE for the import into the UK of a French warship which contained a substantial quantity of asbestos.

http://www.bailii.org/ew/cases/EWCA/Civ/2009/25.html

 

Pleural plaques legislation in Scotland

There is nothing new to report on this topic. The Scottish Committee dealt with the Bill at Stage 2 on 8th December, 2008. Further procedure is awaited. Newsletter 2 which had a restricted circulation dealt with a decision of the English High Court on the interpretation of insurance policies. It is available on my website.

Health and Safety penalties increased

The Health and Safety Offences Act 2008 increased penalties.

http://www.dwp.gov.uk/mediacentre/pressreleases/2008/oct/hse106-161008.asp

 

Disclosure by company directors regarding security over their shareholdings

The FSA has clarified its guidance for directors who grant a security over their shareholding.

http://www.fsa.gov.uk/pages/Library/Communication/PR/2009/005.shtml

 

Borders, Immigration and Citizenship Bill

A new Bill dealing with British citizenship

http://nds.coi.gov.uk/Content/Detail.asp?ReleaseID=389703&NewsAreaID=2

Scottish Law Commission – Discussion Paper on Double Jeopardy
The Commission invites comments on its proposals.

http://www.scotlawcom.gov.uk/downloads/dps/dp141.pdf
Department of Transport Consultation

The UK Government invites views on the introduction of a new offence of being the registered keeper of an uninsured vehicle.

http://www.dft.gov.uk/consultations/open/motor/letter

 

Standards for Scottish Solicitors

The Law Society of Scotland has published revised standards for the solicitor profession

http://www.lawscot.org.uk/members_information/standards/

 

Index

1. Newsletter No 1
2. Newsletter No 2 –Industrial Disease
3. Newsletter No 3 – 21st December, 2008

 

All are available on my Website   www.brianscoullar.com © Brian Scoullar 2009

BRIAN SCOULLAR LEGAL AND BUSINESS CONSULTANCY

Email: info@brianscoullar.com
Website: www.brianscoullar.com
UK Tel:  0844 598 3871
UK Mobile: +44 (0)7759 283 687
Móvil Español:  (+34) 648 636 566

NEWSLETTER NO. 5

Introduction

The economic woes of the world continue with little sign of early improvement. The world of commercial and employment lawyers is set to become even busier, as in earlier economic downturns, when companies look more closely at recovering losses arising from contracts and business ventures.

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Current cases in the UK Courts

House of Lords

Mitchell v Glasgow City Council

Mr Mitchell was killed by a neighbour who was also a tenant of the Council. Mr Mitchell had complained about that neighbour’s behaviour and he was killed after a warning of intention to raise Court proceedings for eviction on account of his behaviour towards Mr Mitchell. Mr Mitchell’s family claimed damages alleging a breach by the Council of its legal duty to Mr Mitchell to warn him of the steps which it had taken. There was also a case taken under the Human Rights Act. No evidence was led and ultimately the House of Lords decided that no such duty was imposed on the Council.

Baroness Hale commented, ‘This is but the latest in a long line of cases from Scotland which have played such an important part in shaping the law of negligence for the whole of the United Kingdom. The Human Rights Act 1998 is, of course, unquestionably the law for the whole of the United Kingdom and must be read and given effect in the same way both north and south of the border.’

http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090218/mitche-1.htm

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Appeal Court, High Court of Justiciary

Woodside v Her Majesty’s Advocate

This case is noteworthy for the comments by the three Judges, especially Lord Gill, Lord Justice Clerk, in  elation to the duties of solicitors and solicitor advocates in the proper conduct of criminal trials.

http://www.scotcourts.gov.uk/opinions/200HCJAC19.html

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Inner House, Court of Session

Sovereign Dimensional Survey v Cooper

The Inner House considered a Minute narrating contempt of court by the failure to comply with the terms of an order under the Administration of Justice Act 1972. There are interesting observations on the propriety of such orders and possible arguments against them being made.

http://www.scotcourts.gov.uk/opinions/2009CSIH12.html

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Outer House, Court of Session

Alexander Herron Robertson

A case in which the petitioner sought an order to purchase shares held by others in a company following his exclusion by them from the management of the company. The court took account of the financial downturn since evidence was originally led

http://www.scotcourts.gov.uk/opinions/2009CSOH23.html

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High Court [Admiralty Division]

Dornoch & Ors v Westminster International BV & Ors

A vessel was a constructive total loss and notice of abandonment was tendered. A preliminary hearing was held in order to determine whether additional defenders should be joined.

http://www.bailii.org/ew/cases/EWHC/Admlty/2009/201.html

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Employment Appeal Tribunal

Downing v McAlister

The decision of the EAT, which is attached to the email sending out this Newsletter, shows the need for care in conducting case management hearings. The respondent had been dismissed from the proceedings but thereafter was sisted as a respondent. There was no power to do this once the dismissal had happened.

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European Court of Justice

Stringer v HMRC 20TH January, 2009

In this case, which has major financial implications for employers [ conjoined with Schultz-Hoff v Deutsche Rentenversicherung Bund]  the Court interpreted the entitlement to paid annual leave enshrined in the Working Time Directive on a reference from the House of Lords. The UK employee wished to take a number of days of paid annual leave while she was on an indefinite period of sick  leave. The court noted that the right to sick leave and the conditions for the exercise of that right are not governed by Community law. The court held that a worker who is on sick leave for the whole leave year and beyond a carry-over period laid down by national law is denied any opportunity to benefit from his paid annual leave. The same is also true of a worker who has worked for a part of the leave year before being put on sick leave. As a consequence the right to paid annual leave is not extinguished at the end of the leave year/ and or a carry-over period where the worker has been on sick leave for the whole or part of the leave year and the  incapacity to work has persisted until the end of the employment relationship. On termination of the employment relationship the worker must receive an allowance in lieu of annual paid leave  which is the equivalent of the position he would have been in had he exercise his right.

http://curia.europa.eu/en/actu/communiques/cp09/aff/cp090004en.pdf

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Pleural plaques legislation in Scotland

There is no sign yet of further progress in the legislation. The Scottish Government has written to the Justice Committee with revised details of possible liabilities arising from the draft Bill. The link to the Committee’s site at the foot of the page under Stage 3 gives access to a letter of 25th February, 2009, and the supporting documentation.

http://www.scottish.parliament.uk/s3/committees/justice/inquiries/damages/index.htm

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Arbitration Bill published

The Scottish Government is proposing to update Scots law in relation to arbitration. The Finance Committee is presently seeking views from likely interested parties.

http://www.scotland.gov.uk/News/Releases/2009/01/30102135

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Cross EU border charitable giving

The case of Persche v Finanzamt Luedenscheid makes clear that a charitable body established in one state must not be treated less favourably in another simply because it is not established in that state’s territory provided that the first sate does recognise that type of charitable work.

http://curia.europa.eu/en/actu/communiques/cp09/aff/cp090005en.pdf

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Cross EU border trade –choice of law

http://nds.coi.gov.uk/Content/Detail.asp?ReleaseID=390495&NewsAreaID=2

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Alcohol sponsorship guidelines in Scotland

http://www.scotland.gov.uk/News/Releases/2009/02/03095756

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DNA retention in Scotland

The Scottish Government has confirmed its position on this area of the criminal law. DNA may only be retained while a case in under investigation, there has been a conviction or in relation to a case of alleged violent or  sexual crime and there has been an acquittal for a period of 3 years. In the latter case a Chief Constable may apply to a Sheriff for an extension period. The Government intends to widen certain categories.

http://www.scotland.gov.uk/News/Releases/2009/02/24124302

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Scottish Law Commission Newsletter

The Commission has published its Eighth Newsletter which gives details of its existing work and future plans.

http://by124w.bay124.mail.live.com/mail/InboxLight.aspx?n=1822882461

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Illegal cigarette sales

A special task force has been set up to deal with this problem.

http://www.scotland.gov.uk/News/Releases/2009/02/25113830

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Cigarette vending machines, registration of sellers and fixed penalty notices in Scotland

The Scottish Government plans legislation to ban cigarette vending machines, to introduce a system of registration for retailers, to allow Trading Standards Officers to issue fixed penalty notices for breaches of the law, to ban retailers who breach the law and to ban cigarette advertising in shops. An additional measure will prohibit commercial companies from operating g.p. surgeries.

http://www.scotland.gov.uk/News/Releases/2009/02/26091047

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Index

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BRIAN SCOULLAR LEGAL AND BUSINESS CONSULTANCY

Email: info@brianscoullar.com
Website: www.brianscoullar.com
UK Tel:  0844 598 3871
UK Mobile: +44 (0)7759 283 687
Móvil Español:  (+34) 648 636 566

NEWSLETTER NO. 6 – 6th March, 2009

Introduction

There are a number of interesting developments this week in some basic areas of the law such as registering under the Data Protection Act and a new combined regime for inspections by HMRC. New provisions for dealing with discipline and grievances at work come into force in April. The Scottish Government is active in proposing alterations to the criminal and licensing laws. The recession obviously continues to bite deeper than ever and ACAS has published guidance for employers and employees on managing a business in a recession.

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Current cases in the UK Courts

Court of Appeal, England, Civil Division

The case of Lediaev v Vallen, reported on 5th March is instructive in relation to a litigation agreement and a paid “McKenzie friend”.

http://www.bailii.org/ew/cases/EWCA/Civ/2009/156.html

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Appeal Court, High Court of Justiciary

H.M.A. V Munro & Sons [Highland] Ltd

This was a Crown Appeal against sentence in a health and safety case in which the Court gave advice on the level of penalty and the information which the accused should place before the Court in relation to its financial circumstances. The Court approved of the observations of the court in the English appeal in R V Balfour Beatty Rail Infrastructure Ltd.

http://www.scotcourts.gov.uk/opinions/2009HCJAC10.html

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Inner House, Court of Session

John McCormack v Hamilton Academical Football Club Limited.

This is one of two cases involving football managers which have occupied the time of Scottish judges this year.
This appeal followed the granting of a warrant to arrest on the dependence. The pursuer’s arrestment caught funds held by Glasgow Rangers which were due to Hamilton. The Court reviewed the principles for allowing a warrant to arrest on the dependence, affirmed the fact that the defenders were insolvent but restricted the amount actually arrested having regard to the pursuer’s own averments.

http://www.scotcourts.gov.uk/opinions/2009CSIH16.html

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Outer House, Court of Session.

The second reported case is that of Brian Welsh v Cowdenbeath Football Club. It concerned an application for summary decree by the pursuer. The pursuer had been dismissed for poor tem performance but the pleadings then alleged gross misconduct. Lord Malcolm pointed out that the board, the fans and at least half of the population of the area knew of the pursuer’s disciplinary record with the S.F.A. The judge granted summary decree on the merits but not for damages as the defenders had arguable points in relation to quantum.

http://www.scotcourts.gov.uk/opinions/2009CSOH16.html

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Employment Appeal Tribunal

UNITE THE UNION and Ors v SAYERS CONFECTIONERS LTD – IN ADMINISTRATION

The President of the EAT allowed an appeal by Unite, holding that where an employer is in administration the proper procedure is for an application against it to be accepted but then stayed.  The decision of the EAT [copyright to it] is attached to the email which accompanies this Newsletter.

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European Court of Justice

Age Concern England v Secretary of State for Business etc.

The Court ruled in its judgment issued on 5th March that the social policy objectives of a State, e.g., employment policy, the labour market or vocational training, can justify derogation from the principle prohibiting discrimination on the grounds of age. The case has been remitted to the High Court in England to consider, firstly, whether U.K. legislation reflects such a legitimate aim and ,secondly, whether the means chosen were appropriate and necessary to achieve it.

http://www.acas.org.uk/index.aspx?articleid=2143

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Competition Appeal Tribunal

This Tribunal exists to hear appeal under the Competition Act 1998, the Enterprise Act 2002 and the Communications Act 2003.  

Its website is http://www.catribunal.org.uk/242/About-the-Tribunal.html

One of its decisions issued on 4th March concerns an application by Tesco, other large food retailers intervened to support the Office of Fair Trading, in relation to a report in 2008 by the OFT in relation to the market for the supply of groceries. The report had recommended the introduction of a “competition test” to be considered along with planning matters. The Tribunal decided that the OFT had not properly considered certain matters which were relevant to its recommendation. It did not decide that a “competition test” was unlawful. A further hearing has been fixed for 16th March to consider the issue of the relief to be granted.  The full decision can be found in the link below

http://www.catribunal.org.uk/files/Judg_1104_Tesco_04032009.pdf

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New Scottish legislation announced

The Scottish Government has announced today plans for a bill to deal with reforms of the criminal law and licensing law [some of the matters are referred to elsewhere in this Newsletter]. The Government says that its planned legislation is to make Scotland safer.

http://www.scotland.gov.uk/News/Releases/2009/03/05173017

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Increase in the age of criminal responsibility in Scotland

The Scottish Government has announced its intention to increase the age of criminal responsibility from 8 to 12.

http://www.scotland.gov.uk/News/Releases/2009/03/27140804

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Tackling Scotland’s problem of misuse of alcohol

The Scottish Government has announced its framework to tackle the country’s problem of abuse of alcohol. Its plan includes a minimum price for a unit of alcohol, a ban on promotions such as “ 3 for 2”, a requirement for local licensing boards to consider whether their area should have a minimum age of 21 for the purchase of alcohol in off-sales and a restriction on the display and advertising of alcohol in off-sales premises.

http://www.scotland.gov.uk/News/Releases/2009/03/02085300

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Employment rights changes with effect from 6th April, 2009

Disputes at work

The aim is to have less emphasis on the mechanics of the procedure and to introduce more flexibility. There is a new ACAS Code of Practice and non-statutory guide. There are transitional provisions where disciplinary or grievance procedures started before 6th April. Further details and copies of the Code and non-statutory guide are available through ACAS at the link below.

http://www.acas.org.uk/index.aspx?articleid=2126

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Managing a business through the recession

ACAS has published guidance on this topic for employers and employees. Details are available from ACAS at the link below.

http://www.acas.org.uk/index.aspx?articleid=2143

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Extension of flexible working

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Nominet U.K. Dispute Resolution Service
This body exists to resolve disputes concerning the registration of a domain name.

Its website is http://www.nominet.org.uk/

A recent decision is that of British Tourist Authority v Lingstadt

http://www.bailii.org/uk/cases/DRS/2009/6516.html

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Get ready for new HMRC compliance checks regime in the U.K.
A copy of the new system is available as a download from the COI link below

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The Information Commissioner

The Office of the Information Commissioner is charged with the duty to protect access to personal information and to promote public access to official information.

Its website is www.ico.gov.uk

In a timely reminder the ICO reported this week the successful prosecution of a Knightsbridge lawyer for failing to register after having been warned to do so.

http://www.ico.gov.uk/upload/documents/pressreleases/2009/
knightsbridge_solicitor_non_not030309.pdf

In another report today the ICO reports that it has seized a covert database of more than 3000 construction workers which was allegedly used to vet applicants for jobs in the industry. Apparently there was an annual subscription of £3000.00. The press notice lists those companies which used the service amongst which there are many well known names. The person who ran the business is to be prosecuted and the ICO is to consider what regulatory action is to be taken against the subscribers to and users of the database.

http://www.ico.gov.uk/upload/documents/pressreleases/2009/tca_release_060309.pdf

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Index

1. Newsletter No 1 – 14th November, 2008
2. Newsletter No 2 –Industrial Disease
3. Newsletter No 3 – 21st December, 2008
4. Newsletter No 4 -  28th January, 2009
5. Newsletter No 5- 26th February, 2009
6. Newsletter No 6- 6th March, 2009

All are available on my Website:  www.brianscoullar.com
This Newsletter aims to provide information about current matters. It is not intended to be a substitute for legal advice, which must always be taken in relation to a specific case.

© Brian Scoullar 2009

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