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Book reviews

17 June 13

Reviews of Small Claims Handbook (Ervine); What's Wrong with Copyright? (Tatry)

by Alastair Brown, Stewart Brymer (review editor: David J Dickson)

Small Claims Handbook

3rd edition

W C H Ervine

PUBLISHER: W GREEN

ISBN: 9780414018358

PRICE: £40

The small claim, which is the procedure applicable to claims for payment of money (other than aliment and damages for defamation or personal injuries) for up to £3,000, is a species of summary cause characterised by great flexibility, informality and a distinctly brief set of procedural rules. The third edition of Mr Ervine’s Small Claims Handbook, published last year, justifies fully the claim made on the cover by the publishers that it is an “invaluable practitioner guide”.

After a short historical introduction which sets the modern small claim in its context, the Handbook considers in turn the definition of a small claim, jurisdiction, the steps involved in raising the action, the conduct of the hearings, appeals and expenses. The European small claims procedure is discussed and, in part II of the book, the Small Claims Rules are reproduced. In each chapter, the applicable rules are discussed under reference to the relevant cases, with quotations from the judgments where that is helpful. This is, accordingly, truly a self contained handbook for small claims procedure which includes within one volume all that should be necessary in terms of procedural reference for the conduct of any stage of a small claim.

The book repays study in relation to several particular areas. The discussion of the statement of claim in chapter 4 could be read with profit before embarking on the task of drafting any such statement and, it is suggested, that might lead to reconsideration of the style of drafting, seen all too often, which simply asserts that the pursuers supplied goods conform to an attached invoice, which invoice itself is lacking in any specification of anything beyond the price. Mr Ervine quotes an unreported judgment of Sheriff McInnes (as he then was) in Bird’s Eye Foods Ltd v Johnston (Cupar Sheriff Court, 3 February 1977), where the learned sheriff said that “the test must be whether from reading a statement of claim and any documents referred to therein, copies of which are attached to the summons, the defender is given fair notice of the claim which is being made against him” (emphasis added).

Chapter 5, on the conduct of hearings, is especially useful. It is well accepted that the rules give sheriffs a wide discretion about how hearings are conducted and that can result in the case being decided on ex parte statements, as in Dunn v David A Hall Ltd 1990 SCLR 673. The Handbook contains a useful discussion of the limits which apply to the conduct of a hearing.

These are simply examples, albeit important ones. The essential point is that, notwithstanding the name of the procedure, a claim for up to £3,000 is not, for most people, “small”. According to Government figures, in 2011 the median gross annual full time earnings in Scotland was £25,490 (www.scotland.gov.uk/Topics/Statistics/Browse/Labour-Market/TrendEarnings, accessed 22 January 2013). On that figure, £3,000 represents the best part of two months’ earnings after tax. Those who pursue or resist such claims need a procedure which is not only constructed well but one which is also applied well. Mr Ervine’s Small Claims Handbook makes it much easier to meet that need.

Sheriff Alastair N Brown
                                       

How to Fix Copyright

William Patry

PUBLISHER: Oxford University Press

ISBN: 9780199760091

PRICE: £13.99

 

William Patry is senior copyright counsel at Google Inc, and therefore has considerable experience of copyright at the proverbial coalface. The views expressed are those of the author in a personal capacity, however.

This is an interesting and eminently readable book that seeks to challenge accepted values of copyright law and practice. The old analogy of “If we started afresh, would we do things the same way?” comes to mind.

The author adopts the interesting approach of what he calls “unlearning” existing beliefs in encouraging the reader to examine what is accepted as the norm. His underlying message is that copyright laws need to be reviewed in light of the seismic changes over the past 20 years or so. In the author’s opinion, the central purpose of copyright laws has been to control markets, and that approach is outdated and is acting as an obstruction to innovation and economic growth. Central to this view is that the current term of copyright protection is too long and that it should be shortened and be more tailored to particular types of artistic work.

The author contends that the “top down” approach to copyright law does not really work best for copyright owners. He describes this in chapter 6 as the “Mount Sinai” approach. In his opinion, the deterrents largely do not work and current laws are not consistent with societal values. In his closing remarks, he states that copyright owners have all the tools they need to go after the “bad guys”, but that they should also support the “good guys”, otherwise no copyright law can help them.

Overall, I did not know what to expect from this book. It was an interesting read and made me think – which is never a bad thing.

Professor Stewart Brymer WS, Brymer Legal Ltd

 

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