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Book reviews

19 January 09

Reviews of Assignation (Anderson); The End of Lawyers? (Susskind)

by David Carey Miller, Douglas Mill

This book is the first publication of the Edinburgh Legal Education Trust. With the aim of furthering legal scholarship, the Trust’s CPD income is applied to funding PhD research and publishing the results. This fills a gap because doctoral scholarship does not necessarily represent what commercial publishers would offer their markets. The author acknowledges in the preface that his thesis-based work “is not a practitioner’s handbook”. Nonetheless, accessible scholarship facilitates legal development. The “utility of scholarship” point is of particular importance in the context of the complex historical continuity of much of Scottish private law. Does Assignation deliver in the demanding respect of potential to inform matters en route to and in Parliament House?

The answer is a resounding affirmative. On all important aspects of assignation, and associated issues – accretion, contractual prohibition, insolvency, set-off and so on – the book is an exceptionally valuable source. The comprehensive treatment of intimation is probably the work’s most singular aspect. The distinctiveness of the law in recognising assignation as a matter of transfer requiring a perfecting act of intimation is shown in a fascinating treatment of the history of the institution. More importantly, perhaps, there is a highly informative account of the detail and nuances of intimation. The author does well in bringing some clarity to a long, difficult and controversial history, unfortunately not notable for eventual arrival at a clear and workable position. A certain complexity of structure, deriving from investigation having priority over accessibility, does not detract from the book as a practical source because there is an excellent index.

The work would certainly be an invaluable tool in any reform process. Associated observations by the author surely beckon reform. First, that commercial practice “has long ceased to comply with the 1862 [Transmission of Moveable Property (Scotland)] Act”; and, secondly, the likelihood that a present-day court “would accept a written notice signed by the cedent and served on the debtor or the assignee as sufficient”.

The policy behind a strict requirement of intimation to the debtor is certainty; the law seeks to avoid the “problem that the debtor is unlikely to know of the transfer until after it has been made”. But, as Assignation demonstrates, the laudable aim of certainty is lost in a confused case law. Even judicial intimation, an alternative to formal intimation, is fraught with problematic dicta. Having demonstrated, in a systematic analysis, the difficulties of the leading case of Carter v McIntosh (1862), the author asks: “How, then, does judicial intimation work?” His conclusion, surely correct, is that the assignee pursuer will have to lodge the application in process and he will be liable for the debtor’s expenses, with the consequence that “judicial intimation is an expensive way of intimating an assignation”.

A feature of this work is its extensive and effective comparative dimension, with foreign solutions generally informing in the particular. Considering the history of difficulty with intimation, one wonders if the apparently simpler approach of South African law would not be preferable. The debtor, ignorant of any cession, is entitled to pay the original creditor and the debt is discharged if payment is accepted. If, however, the cession is complete and the debtor is aware of this, he can no longer pay his original creditor, but must pay the cessionary. (See Wessels’ Law of Contract, paras

1702-3.) Disputes will still arise, but there is much to be said for the inherent flexibility in accepting that the debtor can be informed in any effective manner.

Despite the uncertainty of the law, the author is generally confident in his position. This is a positive quality, provided it is open to contrary views. In the treatment of “offside goals” – a common issue for all forms of property – a compelling account founded on historical sources pays little attention to modern doctrinal thinking in concluding that the “rule does not sit easily with Scots law”. The “one or other” distinction between real and personal rights means that transfer must be a separate and distinct legal act involving the parties’ respective intentions to convey and receive. In that act, disposal by one who remains owner is necessarily always competent, but acquisition can be defective and open to reduction in consequence of bad faith – arising at any time pending acquisition. On this basis Lord Eassie’s opinion in Alex Brewster is correct.

Ross Anderson has served the law of Scotland exceptionally well in producing a comprehensive critical account of a difficult area neglected in the literature. The prevalence of assignation in earlier times is returning with the increasing importance of incorporeal property. This book will be of great utility to lawyers involved with the subject.

D L Carey Miller, University of Aberdeen

The second book in the “Studies in Scots Law” series has also been published by the Edinburgh Legal Education Trust: Pledge and Lien, by Andrew J M Steven, ISBN 0 9556332 1 8, price £30.30


The end of lawyers?

Twelve years have passed since Richard Susskind published his seminal work The Future of Law. This was a profound and visionary look at the impact of technology on the provision of legal services. That publication not only generated considerable interest; it cemented Susskind’s growing reputation as a thinker, writer, presenter and influencer of public policy.

Twelve years is a long time in the law. It is a much longer period of time in information technology, and an update was therefore overdue. This present work is important to the profession for two reasons.

The first is that in a self-analytical and self-critical way Susskind measures the reality of 2008 against his predictions. In writing a 10-year review of The Future of Law for the Law Society of Scotland’s management book circle a couple of years ago, I assessed Susskind as having scored about 71/2 out of 10 in the accuracy of his predictions. I am happy and relieved to report that his assessment is similar.

The second reason that this book is important is that it looks yet further into what (in view of our uncertain collective economic future) may be a much more turbulent decade.

The book is unashamedly written at a very high level – largely in relation to big UK and US firms and large in-house legal departments.

It has however extremely profound messages for government, and relevance to all legal practitioners in Scotland.

There are few readers of this Journal who would not be well advised to part with £25 and hunker down with it over one of our wet winter weekends. They will be relieved to see that the title does include the question mark, and is accordingly thoughtful and provocative rather than heralding the civil servant’s dream.

Many of Susskind’s themes on the future of law continue, such as his crusade against “the curse of hourly billing”. He draws a significant distinction between IT assisting and improving current paradigms of service delivery and, more importantly, “disruptive” IT which results in a whole new nature and form of delivery.

This book should be prescribed reading for all law students. Anyone considering investing their future in the profession needs to understand the profession and its issues. Pleasingly, Susskind acknowledges his Glasgow roots, and credits not only his brother Alan from Ross Harper as supportive, available and challenging, but other luminaries in the Scottish legal scene such as David Bone, David Goldberg and Paul Maharg. Unfortunately, in his description of the necessity of legal services evolving towards proactive rather than reactive advice, he overlooks the significant success of Malcolm Mackay in his Law at Work project.

The book is a challenging read (but is pleasingly jargon-free), and is also replete with a number of irrestible facts. For example, Sweet & Maxwell worked out that 3,071 new laws were introduced in 2007 – about eight per day. Susskind is evangelical in his call for proper governmental and indeed public body publication of laws.

If there is an area in which the book is light, it is in the assessment of the strengths, weaknesses, opportunities and threats relating to high street legal practice and the proper role of the state in the regulation of lawyers. Notwithstanding this, however, it is a challenging and deeply impressive work and has for forward-thinking lawyers a healthy prognosis for the future.

“Open minded lawyers and ones who genuinely care about the interests of their clients should, in the internet age, continually be looking at ways in which IT can play a more prominent role in their services.”

At the moment there is a role for the trusted personal adviser – particularly in the light of the continuing financial services debacle, the result of which will be a long term lack of public trust in banks and financial institutions. Whether or not the one-to-one paradigm is sustainable for future generations, both in terms of cost and psychology, is debatable. Technology is with us all, and those who continue to resist it now have a very limited shelf life.

This is an outstanding publication. Buy it. Read it. Think about it. Support your local hero.

Douglas Milll

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