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Book reviews

14 July 08

Reviews of Gloag & Henderson (12th ed); Evidence (Davidson)

by Elizabeth Crawford, James Chalmers

All hail the 12th edition of this unique, and uniquely useful, Scots law text. It used to be said that all lawyers should have each new edition re-bound in the guise of a recent year of Session Cases, and placed on their bookshelf, so they might have at their fingertips a reliable, succinct answer to any point of law posed and effortlessly secure their standing as all-knowing adviser. While changes in practice dull the point of this little joke, the book remains an immensely valuable resource.

The latest edition was published in December, and aims to state the law as at 30 June 2007. The gap of six years since the previous edition is average for this book, but given the volume of legislation emanating from the Scottish Parliament, the re-writing required must have been more than average. Wide though its scope, beyond what is generally regarded as pure private law, with tangential and procedural topics such as jurisdiction, legal system and diligence (in the preface to the first edition  in 1927, the avowed remit was “those branches of the law usually dealt with in the classes of Scots and of Mercantile Law”), consideration should be given next time to the accuracy of the title in view of the rise in importance of public law, administrative law, human rights, and conflict of laws, all of which, with criminal law (dropped as from the 10th edition), are largely excluded for reasons of length and manageability. Admittedly, however, the book is always known by the names of its original authors rather than by its title.

There are many enactments, mainly of the Scottish Parliament, which have necessitated new writing, e.g. (by category) those concerning debt, bankruptcy and diligence; land reform and agricultural holdings; housing; mental health; and family law, including civil partnership and adoption. The same is true of areas of significant development in the common law such as unjustified enrichment. The mere iteration of these disparate developments emphasises the widely varying expertise of the contributors, and the great value of this remarkable book in digesting and explaining authoritatively and accessibly the corpus of new material in one volume.

The assistant editors of the 12th edition, under the distinguished general editorship of Lord Coulsfield and Professor MacQueen, comprise academics and practitioners, whose names appear on the spine. It is not uncommon in multi-authored works to identify in the preface the authors of the various individual subject treatments. This has not been a feature of recent editions of Gloag & Henderson, which I feel is a matter for regret. However, the general editors have ensured that the style is clear, consistent, and in keeping with previous editions. Presumably the selection of further reading at the end of each chapter is that favoured by the individual contributing author, no doubt subject to general editorial approval, but inevitably partial in both senses of the word.

An assessment of the quality of the new edition would demand the knowledge and talents of a Scots (private law) polymath. Such a person would require to display the wisdom of Solomon, the omniscience of a seer, the pithiness of Dorothy Parker and to be as au courant as a Fleet Street editor. Indeed, to do it justice, a committee of reviewers might be required to match the expertise of the authors. However, one surely should begin by identifying those areas where most change has occurred (stated to be property, family law, company law, bankruptcy, employment, and unjustified enrichment), and endeavouring to evaluate the clarity, authority and completeness of the text in those areas.

By this method, one notes with appreciation the many elements, e.g. within family law, where the reader is brought up to date on topics such as adults with incapacity, rights of cohabitants, and constitution and consequences of civil partnership. The text might have included more on sham marriages, given the subject’s relative importance in our culture, the difficulties encountered in Hakeem v Hussein and the attempted solution in s 2 of the Family Law (Scotland) Act 2006. Status of children, parental responsibilities and rights, international child abduction, and adoption (but not intercountry adoption), and, briefly, child protection are covered also in this chapter, which, while clearly presented, on examination reveals itself to have been cast a relatively small part in the play.

On the commercial side, the book deals admirably with developments in contract, delict and enrichment while retaining the exemplary account of common law principles. It informs the reader on debt recovery and personal insolvency. There is a lengthy treatment of agricultural tenancies, and crofting; a number of paragraphs on tenancies of houses – but very little on tenancies of shops; and on commercial leases specifically, it seems the reader must turn empty away. The portions on property law identified as requiring rewriting remind us to follow the path to the section on public rights of way and the new rights under the Land Reform (Scotland) Act 2003. The treatment of company law has been presented on the basis that the Companies Act 2006 will be fully in force by October 2008.

There is a most useful chapter on “Courts and Jurisdiction”. In addition to the information which one may need as a reminder (e.g. nature, location, personnel and expected operational date of the UK Supreme Court; nature and jurisdiction of EU courts), it explains the content and application of the Civil Jurisdiction and Judgments Act 1982, and rules of specialised application such as the jurisdiction of EU member states in divorce and annulment, providing a succinct summary of the operation in Scotland of BII bis (Council Regulation (EC) 2201/2003) and the Domicile and Matrimonial Proceedings Act 1973. It is clear now that the separation of domestic from cross-border rules of jurisdiction is problematic.

In a book of this type – if it can be said to be of a type – it must be difficult, working within space constraints, to decide how much cross-border material to include, and whether to locate it in a general chapter or in its substantive subject chapter. For example, domestic and intra-UK rules of jurisdiction in bankruptcy are included, but reference to Council Regulation (EC) 1346/2000 on Insolvency Proceedings is minimal. The plea of forum non conveniens is explained, vouched and illustrated by Scots cases only, an artificial approach today, given the importance of House of Lords decisions such as Spiliada Maritime Corporation, Connelly v RTZ and Lubbe v Cape. Though the inapplicability of the plea within the Brussels jurisdiction regime is noted in a sentence, the ECJ case of Owusu v Jackson, an important component of our understanding of the plea’s legitimate ambit, even in a Scots court, is not mentioned. In my view, the editors have done well to include a substantial portion on jurisdiction in personam, but the extent of treatment of international jurisdiction is a pressing issue, given the inexorable progress of the EU harmonisation scheme.

Yet to me the genius of Gloag & Henderson lies in the completeness of its treatment not only of the new, but of the long established, providing for the unsure or forgetful the first port of call (and possibly the only one needed, the answer typically being clear and thorough). Let no-one perplex you with lunchtime talk of “stillicide”; you too can be fully informed by 2pm. It is truly a case of “Enquire within”. Those who know its worth need no further encouragement to make what they will regard as a necessary and desirable purchase; those who are not so familiar with this book should hasten to add it to their library.

Professor Elizabeth Crawford, University of Glasgowo