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Book reviews

19 October 09

Reviews of Credit and Security (Goode); Property, Trusts and Succession (Gretton and Steven); Civil Procedure (Hennessy); Land Tenure and Tenements (Rennie)

by Graeme Hawkes, Stuart Holmes, Isobel McColl, Stewart Brymer

Goode on Legal Problems of Credit and Security: 4th edition

 

 

The fourth edition of this leading textbook is the first to have been edited by someone other than Professor Sir Roy Goode. No doubt conscious of the delicacy of the task of following in the footsteps of such an eminent author, Louise Gullifer (a fellow academic at Oxford) has, by her own admission, limited her changes to those dictated by recent developments in case law, legislation, academic debate and proposals for reform.

 

The book began as a series of public lectures delivered by Professor Goode in 1982 relating to security and quasi-security interests, particularly in relation to security in personal property. The use of that last expression should immediately alert the reader to the fact that this is a book which requires to be firmly indexed under “English law”. There is frequent reference to authorities from other Commonwealth jurisdictions as a means of shedding light on a number of complex issues, but the lone Scottish piper is the House of Lords decision in Bank of Scotland v Crerar from 1922 (and even that only arises as a footnote to a discussion about security interests in shares).

 

With that caveat in mind, the book does deal in some detail with a number of UK-wide concepts which a Scots corporate lawyer might well find useful: floating charges; the characterisation of, and competition between, those charges and their fixed equivalents; and set-off in various contexts (contractual and insolvency being the main examples). To that extent, the book is a lucid and thought-provoking insight into the legal issues created by various types of moveable securities from a perspective which seems to strike the right balance between academia and practice. The battle which has raged between banks and liquidators for some 20 years over the proper characterisation of charges over book debts as being fixed or floating – which started with Siebe Gorman in 1989 and now appears to have been settled by the return to orthodoxy in Re Spectrum Plus – is particularly illuminating.

 

Of perhaps less everyday benefit to the Scottish practitioner are the chapters which concentrate on the underlying legal concepts which inform the approach to securities under English law. Scots law has always taken a different path – even floating charges were an alien concept to a system which had hitherto required the creditor to take possession of the goods secured – and so whilst many of the more discursive passages are interesting from a comparative point of view, they are firmly rooted in an English common law tradition.

 

The new editor has ensured that statutory references are kept up to date. For example, in the passages dealing with the registration of company charges she has referred almost exclusively to the section numbers in the 2006 Act rather than the 1985 Act, despite the fact that those sections do not come into force until October this year. This edition also covers in greater detail than was possible in the last edition the reform of insolvency law brought about by the Enterprise Act 2002.

 

It may also be worth observing that the editor’s co-authorship of a comprehensive textbook on the subject of personal property security has enabled her to tackle thorny issues not covered by previous editions of this book. The analysis of what it means to take property “subject to a floating charge”, as where a floating chargor disposes of charged property outside the ordinary course of business or in breach of a restriction in the charge agreement to someone with knowledge of that fact, is a prime example.

 

The book is not without its lighter moments. The reference to Ambrose Bierce’s definition of a creditor in his Enlarged Devil’s Dictionary as “One of a tribe of savages dwelling beyond the Financial Straits and dreaded for their desolating incursions” should bring a smile to those acting for hard-pressed debtors in these recessionary times.

 

 

Graeme Hawkes, Advocate

 

 

Property, Trusts and Succession

 

 

This completely new volume by Professor Gretton and Mr Steven is an attempt to provide a student text covering three difficult areas bound together on the university syllabus, for which the exam looms larger and more sinister than most for those in the early stages of their undergraduate degree.

 

Squeezing the fundamentals from such a wide subject area into a single slim(ish) volume requires a disciplined approach – the equivalent sections of the Stair Encyclopaedia run to in excess of 1,500 pages. For those with little time or an aversion to heavy lifting, this book provides all the essentials in a concise form unlikely to fall foul of the Manual Handling Regulations.

 

The book covers important developments in the area over the last few years – including the provisions of the Family Law (Scotland) Act 2006 relating to cohabitants’ rights, and the Act’s effect on special destinations; the Housing (Scotland) Acts 2001 and 2006; the Tenements (Scotland) Act 2004; and the Bankruptcy and Diligence (Scotland) Act as it relates to floating charges, the landlord’s hypothec, and its effect on other diligences (though given the protracted legislative history of the latter, any full account would be a challenge at this stage). The work’s youth alone gives it an advantage over some other popular textbooks – being published nearly 20 years after Scobbie on Trusts, and nearly eight since the latest edition of Macdonald on Succession. The chapters on property in the 12th edition of Gloag & Henderson are recent, and excellent, but marginally less detailed than this.

 

Citation of authority is selective, especially in the earlier chapters, where the authors have demurred from the oft-employed scattergun approach and restricted themselves to the most useful cases. Of these, the more important merit a succinct (perhaps on occasion a little too succinct) explanation in the main text.

 

Helpful examples are given often, and will clarify how matters work in practice. This is especially useful in relation to intestate succession, where so many exam questions will be based on the kind of calculation that the authors carry out. The book is also very accessible. Short chapters are broken down into well-structured headings, and a readable, often humorous tone is maintained throughout.

 

The authors are firm about the book’s limitations, and make it clear where there are subjects beyond its scope. Directions to specialist textbooks are again selective, and therefore

helpful. The authors also make reference to the sources of law in other jurisdictions, which will aid those interested in comparative study.

The book concentrates heavily on property law, with three of its 31 chapters devoted to trusts, five to succession including special destinations, and a chapter by Alison Struthers at the end of the book to cover human rights legislation as it relates to all three. A handy appendix on the feudal system, including a “one-minute summary” is also provided.

Gretton and Steven succeed in drawing together the essentials from a very wide area of law, though students will require to venture beyond its covers for the full details. It is an excellent place to begin – as much for those with a debate on the horizon as for those with an exam.

 

Stuart Holmes, Turcan Connell

 

Civil Procedure and Practice: 3rd edition

 

The prior two editions of this book were published in 2000 and 2005 respectively. As with the earlier editions, the third edition’s principal aim is to make the rules and practice of the major forms of civil procedure in Scotland understandable and accessible to those who have limited knowledge and experience.

The edition reflects procedure and practice as at 1 April 2008. The principal change reflected in this edition is the change to the financial jurisdiction limits for summary causes and small claims which came into force in January 2008. Other major rule changes which have occurred, and more recent case illustrations and examples from the previous three years, have been included.

The author states that the book is intended as an introductory guide to law students who may have difficulty in grasping what civil litigation procedures are about until they have been closely involved in civil cases in practice. It is also intended as a starting point for readers who are coming upon civil procedure rules in practice for the first time, or are dealing with a case for the first time under a form of procedure with which they are unfamiliar. The author seeks to put some emphasis on the reasoning behind the rules and their practical applications, to encourage readers to see the court rules and procedures as a means to an end and not as an end in themselves. The author succeeds in his stated objectives, and provides the sound advice that reference should always be made to the rules themselves.

In addition to a general introduction to rules of procedure and practice and an outline of the different courts and their rules, the book discusses a variety of topics including written pleadings, preliminary pleas, all actions that may be taken as Court of Session ordinary actions, personal injury actions in the Court of Session, commercial actions in the Court of Session, judicial review, sheriff court ordinary and commercial actions, sheriff court commercial actions, summary causes and small claims. All the major incidental procedures (appeals, expenses, debates, proofs, jury trial and decree amongst them) are likewise addressed. Declaratory and petitory actions, summary applications, statutory appeals and appeals, incidental procedures in civil actions, special procedures in actions for damages and personal injury, legal debates, proof, proof before answer and jury trial, decrees, appeals, expenses and the effect of human rights legislation on the rules of civil procedure are also considered.

 

The author provides suggestions in each chapter for other textbooks and further reading which will provide a more thorough treatment of the specific procedures concerned. For that reason this book would be a good practical starting point, not only for students but for practitioners at many levels. It specifically does not deal with family actions, which have their own highly specialised rules of practice and procedure; nor does it refer to title and interest to sue in civil proceedings, and there is little reference to jurisdiction rules. The author makes the point that in practice in non-family cases jurisdiction is rarely a major issue – confessing with disarming candour that the detailed rules are so complex that he has never fully understood them. He may not be alone in that regard.

 

The author acknowledges that there may be very substantial changes to the administration of the civil courts in Scotland, and the procedures and practices which are discussed, following the outcome of the Civil Courts Review under the chairmanship of Lord Gill, the Lord Justice Clerk. Even so, allowing for the timescales which are inevitably involved in any changes to court procedures, it is likely that this publication would be money well spent by both students and practitioners for some time to come.

 

 

(Sheriff) Isobel McColl

 

 

Land Tenure and Tenements Legislation: 3rd edition

 

 

This is the third edition of a book that has become an essential text for all property lawyers. Robert Rennie has skilfully updated the text of the previous edition in light of the developing case law in the post-appointed day era – is it really five years since that day?

 

There is no point in this review running on at great length about the strengths of the text and the value of the general notes and commentary prepared by the author. My one piece of advice is – buy the book!

 

 

Professor Stewart Brymer WS, Brymer Legal

 

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